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Copyright? Trademark? Or Is It Both?

Intellectual Property Law: Copyright? Trademark? Or Is It Both?
By Justin M. Jacobson, Esq.

While sometimes mistakenly grouped together, trademarks and copyrights are very different. In fact, each of these intellectual property protections applies to distinct and unique things. However, both are equally important; and, in some situations, both may be necessary to secure proper protection in a project.

Trademark and Copyright Protection

Copyright law grants the owner of a work with exclusive rights to it for a limited time. A work is eligible for copyright protection if it is original and fixed in a tangible form, such as a sound recording fixed on a CD or as an MP3 file or a literary work on line or on paper. Many types of works may receive copyright protection, including musical works, literary pieces, dramatic works, choreography, audio-visual works and many graphic or artistic creations. For example, a person may copyright an original poem, a motion picture, a song, a video game, unique dance choreography, as well as a photograph. For additional information on copyright law, click here.

What is a Trademark? What is a Copyright?

Another intellectual property protection available to businesses and individuals is a trademark.  Trademark law grants the mark’s owner with the exclusive right to use a mark or “brand” for the goods or services provided by them. In fact, trademark protection can apply to a word, phrase, slogan, logo design, smell, sound or a combination of these, that is used for a specific good or service.

While some works and names are only eligible for either trademark or copyright protection; some things may actually be fully protected by them both. An owner may file and obtain both trademark registration for a specific mark as well as a copyright registration for a particular work. This is a rare instance; but, in the creative and entertainment worlds, proper understanding and use of both of these may be extremely beneficial, if not necessary.

Is The Work Eligible For Copyright Protection? Is It Eligible for Trademark Protection? Or Both?

One perfect example of a concept that may involve both copyright and trademark legal principles is Disney’s “Mickey Mouse” character. This is similar to any cartoon or other recognizable individual, such as any of Marvel comics’ super heroes and villains or the Simpsons or Family Guy characters. In this case, any printed image, animation, audio-visual works, photographs as well as any other illustrated footage may receive copyright protection. This protection may apply to any V.H.S., D.V.D., digital videos as well as any digital games such as a video or computer game containing a character, for example, “Mickey Mouse.” Furthermore, copyright protection is available for any unique “Mickey” vocal clips, songs and other musical works.

In addition to utilizing copyright law, the owners of “Mickey Mouse” may also apply for trademark protection in the name, since the character “Mickey Mouse” has a separate value in its “brand” and in its “mark.” Since the name itself may also be commercially valuable, it may then actually be utilized in commerce in a variety of classes.  This might include “Mickey Mouse” branded clothing, apparel, and memorabilia in the corresponding International Classes. A trademark registration may apply to a variety of services and goods, including a cartoon, a comic strip or comic books, water bottles, stickers, coloring books, towels, and other items that the protected asset may be licensed to and printed on.

In conclusion, there are distinctions between what must be copyrighted and what must be trademarked. In short, a company or product name may be eligible for trademark protection. Additionally, an original work such as a movie, a song, a television show, a book or a comic may receive copyright protection. There are also some cases where both intellectual property protections may be relevant and may be needed to fully secure all the potential monetization routes available.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

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