As an intellectual property lawyer, a common thing I notice is the public treatment of the terms copyright, trademark, and patent. In the legal community, each of these phrases represent distinct rights and doctrines of law. A trademark is a word or symbol that identifies source, a copyright protects original literary or artistic works, and a patent protects an “invention.” (Go here for more information if your really interested.)
However, in general usage, people often use these terms interchangeably as shorthand for something unique to an individual. For example, there’s Allen Iverson’s “patented cross over dribble” (or carry, if you’re a basketball purist) and there’s Cameron Diaz’s “trademark smile” (which was selected for this post because it was the first Google hit). It’s admittedly more difficult to come up with an example for general usage of copyright, so I’ll pass on that for now. Regardless, the point is that generally the public sees patent, trademark, and copyright as the same thing when they really are not.
Now, although each of these are distinct areas of law, there are circumstances where they do overlap. One example in particular is where copyrighted characters (i.e. original literary characters) become indicative of a particular source, which brings us to the inspiration for today’s post: Mystique from the X-Men.
Tragically, I’m not particularly knowledgeable about comic books (who is, right?), but when I see blue skin with green, lizard eyes, I think Marvel Comics and X-Men (Women). I also think mutant, which means there’s only one of her. So, imagine my surprise when, out of the blue (that’s one of Brent Lorentz’s trademark bad puns) I saw this movie preview appearing to take place on an entire planet filled with Mystique-like inhabitants. Except, this movie has nothing to do with Mystique or the X-Men. Instead, it’s an entirely new race of characters from the imagination of filmmaker James Cameron — the Navi from the movie Avatar.
There are likely too many differences between the characters for there to be either trademark or copyright infringement. But, this is just one example of a situation where both copyright and trademark need to be considered. If the Navi were found to be substantially similar to Mystique, there would arguably be a case for copyright infringement. If the Navi lead to people confusing Marvel Comics as the source of Avatar, rather than James Cameron, there may be a case for trademark infringement. This is just something to think about when considering how different intellectual property rights may affect your branding.