You’ve written a book, a poem, a song, or painted a picture, and you wonder: Should I have my work copyrighted? Or perhaps you use a trade name or symbol in your business, and you wonder: Should I have the name or symbol trademarked?
First, let’s define our terms here: There are three types of intellectual property protection under U.S. law: patents, copyrights, and trademarks.
A patent is the exclusive right to use a new and useful process, machine, manufacture, or composition of matter. This post will not discuss patents.
A copyright is the exclusive right to use:
“(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
A trademark is a word, name, symbol, or device, used in commerce to identify and distinguish goods, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods.
A service mark is a type of trademark used to identify and distinguish the services of one person, from the services of others, and to indicate the source of the services.
Copyrights and trademarks are federal law; therefore, copyright law and trademark law are the same throughout the United States.
Registering a copyright
First, you don’t need to file anything with the copyright office, to have your work protected by copyright. You don’t need to put the © symbol there either. An original work is automatically protected by copyright, as soon as the work is “fixed in any tangible form.” For instance, as soon as I click the “save” key on my computer, and save this blog post, this post will have copyright protection.
Once your work is fixed in any tangible form, and is protected by copyright, you have the exclusive right to:
· Reproduce the copyrighted work
· Prepare derivative works based on the copyrighted work
· Distribute copies of the copyrighted work
· Perform the copyrighted work publicly (in the case of “literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works”)
· Display the copyrighted work publicly (in the case of “literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.”)
· Perform the copyrighted work publicly by means of a digital audio transmission (in the case of sound recordings.)
The benefit of placing the © symbol in your work is, that, if you sue for copyright infringement, the defendant will not be able to claim “innocent infringement” and the judge can increase the damages awarded.
The benefits for registering the logo with the Copyright Office include:
· You cannot file a lawsuit, for infringement, before you register your work with the Copyright Office.
· If the infringement occurs before you register with the Copyright Office, you may register the work, and then file suit. However, in this situation, you can only collect “actual damages.” You cannot collect statutory damages or attorney’s fees.
· If you have registered with the Copyright Office BEFORE the infringement occurs, you may then file suit, and you can collect actual damages, statutory damages, and attorney’s fees.
However, registering with the Copyright Office is expensive. As of June 17, 2019, registration costs are as follows:
Registrations online:
· $35 Single Application (single author, same claimant, one work, not for hire)
· $55 Standard Application (all other filings)
Registrations on paper:
· $85
So, unless you anticipate that your work will become popular, and likely to be infringed, you probably won’t benefit much by paying the copyright registration fee.
To register a copyright, click on https://www.copyright.gov/registration/
Registering a trademark
Trademarks, like copyrights, don’t need to be registered to enjoy protection. If a person wants his mark to have trademark protection, all that the person needs to do is to “use” the mark in commerce. If a person “uses” a mark is commerce before anyone else uses the same mark, then that person is termed the “senior user.” A “senior user” of a mark has exclusive rights to use the mark, and can legally prevent anyone else from using the mark. However, the “senior user” only has exclusive rights to use the mark, in the geographic area in which the senior user has used the mark.
The benefits of registering a trademark, include:
· Registering a trademark gives “constructive notice” to all persons, that you own the trademark
· You may send your registered trademark to the Department of the Treasury, and the Treasury Department will then send your trademark to U.S. Customs. Customs may then prevent anyone from importing anything that falsely bears your mark, into the United States.
· Registering a trademark allows you to sue for trademark infringement, in federal court
· If you sue for trademark infringement, the judge can order the infringer to pay you court costs, attorney’s fees and up to three times the amount of damages suffered
· The judge can also order that all objects bearing the infringing trademark be delivered up and destroyed
· After the trademark has been registered for five years, your use of the mark will be “incontestable”, meaning that no one may challenge your use of the mark
However, registering a trademark, is even more expensive than registering a copyright.
As of June 17, 2019, the fees for trademark registration are as follows:
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Application for registration, per international class (paper filing): $600.00
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Application for registration, per international class (electronic filing, TEAS Regular application): $400.00
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Application for registration, per international class (electronic filing, TEAS RF application): $275.00
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Application for registration, per international class (electronic filing, TEAS Plus application): $225.00
To find out more about registering a trademark (including fees), go to the website of the U.S. Patent and Trademark Office, at https://www.uspto.gov/trademark.