Copyrights, trademarks, and patents are confusing. All three are registered with
an agency of the federal government. Each is often referred to as “intellectual
property.” When someone uses a copyright or patent or trademark without permission,
we talk about “infringement.” Most importantly, each one gives the owner exclusive
rights to the work, meaning the owner has the right to prevent anyone else from
using their work. What exactly is the difference between these three forms of intellectual
property protection?
A copyright protects the expression of a person’s ideas. Copyright protection is
given to creative works like writing, computer programs, music, lyrics, graphic
designs, sculpture, photographs, movies, and sound recordings. The expression must
be “original,” which, in this context, means a work that is not an exact copy of
another work.
Patents protect inventions. In order to qualify for a patent, an invention must
be novel, which means that it is something that is different in an important way
from all previous inventions. The invention must also be useful—not necessarily
important, but it must have some use—and it must also be non-obvious. Non-obvious
means that someone who understands the technical area of the invention would see
the invention as a surprising and significant development in the field.
A trademark protects something that is used to identify where a product or a service
comes from. A trademark describes something and is not the thing being described.
An example of a trademark would be a corporate identity, such as a logo, which is
placed on products to inform consumers that the product came from that particular
company.
Copyright, patent, and trademark in use
Consider this example: suppose you are canoeing down a river and grow frustrated
with having to carry your canoe around the shallow spots. You give the matter some
thought and come up with a machine that will lift boats over the shallow spots.
You could get a patent to protect your rights to your invention. Later you decide
to market your invention as the “Acme Lift-a-Boat.” The name “Acme Lift-a-Boat”
can be a trademark. If you make a DVD that you include with each purchase, called
“Getting the Most from Your Lift-a-Boat,” that DVD is protected by copyright.
Other differences between copyright, patent, and trademark
There are other important differences between patents, trademarks, and copyrights.
Copyrights and patents are creatures of federal law. Copyrights are registered with
the Library of Congress, while patents are registered with the Patent and Trademark
Office. Trademarks are not necessarily federal matters. There is a federal trademark
law, and there are also trademark laws in each state.
Copyright is automatic. As soon as you create a work, you have copyright protection.
Registration is necessary in order to defend that protection, but the registration
is not what creates the copyright. (Read more on the
benefits of copyright registration.)
Trademarks and patents come into being only when you register them and your registration
is approved. The approval is not automatic.
One of the most important differences between patents, trademarks, and copyrights
is that patents and copyrights will expire. As a general rule, copyrights for your
new work will last for your lifetime, plus an additional seventy years. A patent
will last for twenty years after your application for the patent. Once copyrights
or patents expire, they cannot be revived.
Trademarks are issued for a finite period of time, but they can (in the proper circumstances)
be renewed. In theory, a trademark could last forever.
Overlap between copyright, trademark, and patent protection
There can be some overlap between the three, especially between copyright and trademark.
If you paint a picture, that picture is protected by copyright. What if someone
sees your picture, likes it, and wants to use it as a logo for a company they run?
Now, that same picture could be a trademark. The picture’s status as a trademark
does not affect its copyright status. Both protections will be there, and it is
only a question of which protection you use to enforce your rights in the work.
That, in turn, depends on how those rights are violated. If your picture is just
copied, it’s a copyright infringement. If it’s used to sell a different product,
it’s probably a trademark infringement as well.