What’s the Difference between a Copyright & a Trademark?
Photo by Markus Winkler. https://unsplash.com/@markuswinkler
Photo by Sam Moghadam Khamseh. https://unsplash.com@sammoghadamkhamseh
Photo by Alexander Grey.
Photo by Kenny Eliason.
I’m often asked what the difference is between a copyright and a trademark. It’s easy to confuse the two because there can be an overlap between the two. Below is a general description of the differences.
Think of a copyright as the “thing” you make. As the creator of this “thing,” you can do whatever you want with it. You can make changes to it, duplicate it, create different versions of it, sell it, license it’s use in specific ways, or do nothing at all with it. A common law copyright is created once your “thing” is in a fixed and tangible form, like sheet music, a photograph, a manuscript, etc. For better protection of the “thing,” it’s highly recommended that you register it with the U.S. Copyright Office. The filing fees for applying for copyright registration range depending on if you are filing electronically or with a hardcopy, and the category. Most electronic filings are less than $100, and the process from filing to final registration typically takes 2-3 months, assuming no issues and no backlogs. Here is the link for more information on federal copyright registration: https://www.copyright.gov/registration/.
A trademark, on the other hand, is your brand. It’s something that the general public associates with you or your business. It can be a logo, a phrase, a sound, etc. Like with a copyright, you have a common law trademark when you use the brand in association with your goods and/or services. You can register your trademark in most states, however it only protects your brand from infringement within the state. For protection throughout the U.S. you have to apply for a federal trademark registration through the U.S. Patent and Trademark Office. Filing fees for initial electronic applications start at $250 per class, and based on the type of form you use, but fees are currently under review for possible increases in November 2024. The process from filing the application to the final registration can range from 12-18 months or longer based on any issues that arise from the application information and backlogs. This is the link for more information on trademarks: https://www.uspto.gov/trademarks.
Finally, federal registrations allow the owners of copyrights and trademarks to seek harsher penalties against those who infringe upon their work or their brand, than they could obtain suing infringers in state courts. These penalties can be civil and/or criminal, and can include an assessment of costs and attorney’s fees.
As with any legal questions, seek the advice of legal counsel to assess the facts of your circumstances.
Let’s Talk about Artificial Intelligence (AI) …..
Photo by Andras Vas@wasdrew.
For those who don’t know much about AI, it’s a technology that gathers and distributes information and images, which can then be used for a wide range of purposes. Think of it like a library but you don’t know how the library is collecting the information, or how it stores the information. You just know that if you ask the library to produce an answer to a question, or to provide an image based on a description, or a video, or to suggest items to users of an app based on previous purchases, it can do that. And not only can it do that, but it can allow for information and images to be altered in any way you desire without notice to the original creator of the work, without limitations on its use, and without verification of accuracy. Scary.
A main concern for creatives is how do you protect your work (for example, photographs) from being used in this AI process? Also, how do you get a source of AI to either compensate you for using your work before getting your permission, or get them to stop using your work at all?
AI also raises concerns among the legal community because there hasn’t been enough litigation about AI to clearly say whether already established principles in copyright law, trademark law, patent law, etc., will continue to hold up in their totality to AI, and if not, what is the point of distinction? There are some current notable lawsuits with unique facts against AI providers. However, these cases will take time to resolve through the litigation and appellate processes.
One of the cases I am keeping an eye on is the NY Times’ lawsuit against OpenAI and Microsoft. The NY Times argues that OpenAI is using the Times’ published copyrighted material to train its technology, without their consent. https://apnews.com/article/nyt-new-york-times-openai-microsoft-6ea53a8ad3efa06ee4643b697df0ba57?utm_source=copy&utm_medium=share. OpenAI argues that the material from the Times falls within the category of “fair use,” and therefore is not subject to the typical copyright protection. https://www.nytimes.com/2024/01/08/technology/openai-new-york-times-lawsuit.html.
Another case to watch is a case of 17 authors who are suing ChatGPT for copyright infringement. https://apnews.com/article/openai-lawsuit-authors-grisham-george-rr-martin-37f9073ab67ab25b7e6b2975b2a63bfe. The authors say that the ChatGPT technology uses their books, without permission and without compensation, to train the algorithm within the technology. As a result, searches performed by users of the technology allow the user to further infringe on the authors’ copyrighted material by allowing the user to create derivative works from their original material.
So you see this is going to take a while to resolve.
Keep a look out for my next blog entry about the difference between copyright and trademark, and why federal registration for both is recommended.