Copyrighting — The differences between Copyright, Trademark, and Registered

The do’s and don’ts of protecting you and your creatives

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• 5 min read

There are three different terms that typically get thrown around toward the end of a project with a client: Copyright, Trademark, and Registered. This legal mashup of protective vocabulary is very important to understand. In fact, while they are often used interchangeably, each mark has a different purpose. In this post, I am going to break down each one in the simplest way possible, giving you the do’s and don’ts of copyright law. We will go over what they are, their uses, and how they cover you and your creatives.

Let’s start out with Copyright. A copyright is best described as a mark that protects literary or artistic works. So, one might use a copyright to signify ownership of a poem, website, novel, drawing, photograph, package, label…the list goes on and on. However, it is important to note that an idea of any kind CANNOT be copyrighted. In other words, if I were to take a picture of the White House, I cannot copyright every picture of the White House ever made. Of course, I would have rights to my particular photograph that I took, but not everyone else’s (both past and future). On the other hand, I CAN copyright an expression of an idea. In example, let’s say I took that same photograph of the White House and photoshopped a llama into the front lawn, and call it “O’Llama’s House”, I can then copyright that expression of the idea. So, if someone then turns around later and photoshops a llama into the front lawn of the White House and claims it as their own, they will be in big trouble because they were not the original creator of that expression. And while I admit “O’llama’s House” is quite an interesting reference, I think you get the point.

The cool part about a copyright is…drum-roll please…that it originates the moment something is created. Meaning, you do not have to go out and get something copyrighted — it is just automatically copyrighted. So, anytime you see the copyright mark (©), the owner of that thing did not go out and sign a bunch of paperwork so that they could put that fancy mark on their website. Rather, since the work is automatically granted a copyright to the person that created it upon creating it, they are allowed to put the copyright mark on it. Seems silly right? Well, just wait until we get to trademarks.

Oh, and by the way, on a side note, I occasionally hear some talk about the 50% rule and that if someone changes a piece by at least 50%, then that new version can become theirs. While this sounds great, this is not true at all. It does not matter how much you change a work, it is still owned by the original creator unless the rights to it have been sold. Not only is this so far out of line, but it is also extremely subjective. I mean, how much is 50% really? Is it a color change, adding something, taking away something, literally cutting the thing in half? Nobody knows. Thus, as a way to wrap up copyrighting, let’s cover the basics and ground rules: Anything you make is automatically copyrighted, you cannot copyright an idea, you can copyright an expression of an idea, and the 50% rule does not exist. Therefore, the following are some common questions that I get relating to copyright law.

  • If an image is on Google, is it free and can I use it? No.
  • Do I need permission if I only use a piece of a photo? Yes.
  • If I removed an image from my website after being notified about its copyright, am I still at fault? Yes.
  • If there isn’t a copyright mark on an image, is it okay to use? No.

Alrighty then! Now that I have exhausted you with information about copyright, let’s briefly touch on Trademark and Registered.

Krispy Kreme Doughnuts coffee cup with registered mark

A Trademark is a little different from a copyright in that it is typically used to protect brand assets, such as a logo, slogan, name, sound, and color. You will often find the trademark icon (™) listed after company names, at the end of logos, or after catchy phrases. Yet, trademarks are very similar to copyrights as they are, in a way, automatically granted to the owner upon its creation (so long as it has not already been used or created by someone else). A trademark is a way of saying that you own something and are planning on getting it registered but haven’t gotten it approved by the USPTO. Wait, wait, wait, who is the USPTO and why do they care? The United States Patent and Trademark Office (USPTO) is the office that handles all records of ownership of a particular asset. They make sure that people don’t register the same thing twice and designate who owns what. When looking into a trademark, it is always important to first check with the USPTO and clarify that no one else owns what you are trying to claim ownership of. Nonetheless, you can put the trademark icon in front of anything you own until you get it registered.

And then there is Registered, which is basically the approved version of a trademark. Once you file everything with the USPTO and they confirm your ownership of something, you can officially put the registered mark (®) after that something. This is the only mark out of the three that you technically have to file for, and it is usually an easy process that will cost you around $300 depending on the circumstances and assets involved. Also, it’s always smart to go through an attorney for both a trademark and registration to ensure that things are done correctly. All in all, you obviously have to have something to trademark before you can trademark it, and I am the right person for the job. Now that you have a better understanding of copyright law and what’s involved, maybe it’s time to get the ball rolling on your new startup or rebrand. I’d love to chat with you about how we can light the spark and make your brand come to life! As always, if you found this post helpful or have any other questions, let me know what you think by dropping me a line here or reach out to me on my Facebook page where you can keep up to date on everything ARK Design.

Written by Austin Klubenspies