This article explains what copyrights and trademarks are, how to register or apply for a copyright or trademark, and what protections and rights copyright and trademark holders have. Find out how to protect and monetize your original work.
What is a Copyright?
In simple terms, copyright means “the right to copy.” A copyright holder has the exclusive right to reproduce an original creative work, which is usually a literary, artistic, musical, or educational work in physical form. The copyright holder may also authorize others to reproduce the work.
Examples of unique creative works that may be copyrighted include but are not limited to:
- Novels
- Poetry
- Short stories
- Screenplays and stage plays
- Set designs
- Costume designs
- Dance choreography
- Musical scores
- Musical lyrics
- Vocal works
- Instrumental works
- Software
- Web designs
- Graphic designs
- Art
- Clothing designs
- Architectural designs
- Textbooks and lesson plans
Copyright does not protect creative works that are not in physical or tangible form, such as ideas, discoveries, concepts, or theories. Creative works such as speeches, musical scores, and original ideas must be memorialized in a tangible medium of expression in order to be copyrighted. For example, original music must be written as a score or recorded. An idea for a sculpture must be sculpted. A poem must be written down.
What rights do I have if I am a copyright owner?
A copyright owner or holder has the exclusive right to:
- Reproduce the work
- Prepare derivative works based upon the work
- Distribute copies by sale or by rental, lease, or lending
- Perform the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, or a film
- Display the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, a pictorial, graphic, or sculptural work, and the individual images in a film
- Perform the work publicly by means of audio transmission if the work is a sound recording
These exclusive rights expire after 70 years after the copyright holder’s death in the U.S. Other countries differ. A work may be copyrighted whether it is published or unpublished.
How do I apply for a copyright?
Your work is copyrighted the moment you create it and fix it in a tangible medium of expression. Registering a copyright is voluntary, but if you must bring a lawsuit for copyright infringement, you must have a registered copyright. If you register your copyright within five years of the creation of the work, a court considers that prima facie evidence of ownership.
There are further benefits of registering your copyright. When you register it prior to any acts of infringement or within three months after its publication, you are eligible for statutory damages, attorneys’ fees, and court costs paid by an infringer should you have to sue. Also, you will be able to file your registered copyright with the U.S. Customs and Border Protection, who will help guard against imported infringing copies of your work.
Your copyright is registered as of the date the Copyright Office receives your application and a non-refundable filing fee.
How can I monetize a copyrighted work?
Any or all of the copyright holder’s rights, or parts of those rights, can be transferred to someone else for a period of time or permanently. In the U.S., such a transfer must be made in writing and signed by the copyright holder or their agent. Transferring a right or rights on a nonexclusive basis does not require a written agreement.
A copyright holder can bequeath copyright in a will. If a copyright holder has no will, copyright can pass to an eligible party under the state’s intestate succession laws.
A transfer of copyright ownership by any means can be recorded with the Copyright Office through its Office of Public Records and Repositories, giving the new copyright owner some legal advantages if a dispute or unauthorized use occurs.
What is a Trademark?
A trademark is a mark that protects words, phrases, symbols, or designs, or any combination of these, that identifies the source of the goods or services of the trademark holder and distinguishes the trademark holder’s goods and services from those of others.
A trademark is said to be an essential part of a company’s brand. When someone infringes upon your trademark by using it or something similar enough to cause customer confusion, this dilutes the power of your brand. It is important, therefore, to register your trademark to receive optimal protection under the law.
What rights do I have in my trademark?
Common law rights
If you do not register your trademark in your state or with the U.S. Patent and Trademark Office (USPTO), any protection for your trademark has flowed from your use of the trademark in your industry and geographic area.
State trademark registration
If you choose to register your trademark in your state, your trademark is protected in that state only. If you choose to do business across state lines, your trademark is not protected from infringement unless you register it in that state also or with the USPTO.
Federal trademark registration
When you register your trademark with the USPTO, you have the exclusive right to use your trademark to identify your particular goods or services and to prevent competitors from using your trademark or something similar for the same goods and services anywhere in the nation.
You use the ® symbol to put competitors on notice that you have registered your trademark.
International trademark registration
There is no such thing as “worldwide trademark registration,” however, you can register your trademark in multiple countries through a treaty known as the Madrid Protocol. Completing a single application registers your trademark in all of the over 100 signatory countries. Bear in mind that registration is not automatically granted under the Madrid Protocol. Each member country’s trademark office will review your application and decide whether your trademark will be registered in that country.
How do I register a trademark?
You can apply online for trademark registration on the USPTO’s website. There you can determine whether anyone else is using your trademark or something similar and fill out your application for an examining attorney, who will review it and either approve or deny it.
If your trademark application is approved, keep in mind that you must continue to use your trademark in commerce, provide evidence to the USPTO that you are still using it, and file maintenance documents and fees at required intervals.
How can I monetize my trademark?
You can monetize your trademark by entering into a licensing agreement. The licensee will pay you as licensor for the use of your trademark under specified circumstances. Such an agreement should be in writing, signed by both parties, and registered with the USPTO.
When drafting a licensing agreement, bear in mind that the law permits you to license your trademark only if you control the nature and quality of the goods and services bearing those marks. You should monitor the licensee’s use of your mark to protect your mark and the goodwill and customer recognition it represents.
As an artist, whether literary, visual or performing, you may need both copyright protection for your work as well as trademark protection for your mark in order to protect your brand. While applying for Intellectual Property (IP) protection can be done online, it is best to seek the help of an experienced IP attorney so that there is the greatest likelihood your work and your brand will be protected under the law.
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About the Author:
Veronica Baxter is a writer, blogger, and legal assistant living and working in the great city of Philadelphia. She frequently works with and writes on behalf of the busy NJ immigration lawyers in The Yao Law Group.
