Copyright and Trademark Symbols

©  TM  SM  ®

You've seen these symbols before, but how do you use them properly?

© - This is the symbol for a work protected by a copyright. Providing notice of copyright protection by using the © in connection with the author's name and the date is optional, as discussed here. However, copyright law has made it a crime to remove or alter a copyright notice, so whether your work is being copied lawfully or unlawfully, you have an extra incentive to use the © symbol on all original works of authorship.

TM & SM - These symbols indicate trademark use, but not trademark registration. Use these when you are using a word or a logo as a source-identifier, and you want to put others on notice that you are establishing common law trademark rights. The TM is appropriate where you are using your mark on goods, and the SM where you are using your mark in connection with services. Note that these symbols do not indicate that a federal trademark application has been filed.

® - Use the "circle R" with a trademark that has been granted a federal registration. A state trademark registration does not qualify. Be aware, though, that this symbol should only be used when you are using your mark in connection with the specific goods/services listed in your registration. So if you own a federal registration for the mark WIDGETS used in connection with steel bolts, using the ® symbol with your WIDGETS mark on ice cream would be inappropriate.

* This information is educational only; if you have questions about the use of these symbols with respect to your specific situation, please contact myself or another licensed attorney for assistance.

What is a Copyright?

Copyright law has been around for a long time. It has its basis in our Constitution, which gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .” (Article 1, Section 8, Clause 8) It’s designed to encourage creativity by giving authors certain exclusive, time-limited rights.

Eligibility

Copyright law protects an original work of authorship fixed in a tangible medium of expression. What that means, in English, is that your work needs to demonstrate some minimum spark of creativity that originated with you (a pretty easy hurdle to overcome), and needs to be perceptible either directly or with the aid of a machine. It follows, then, that copyright law won’t protect works that are unoriginal or that aren’t fixed in some fashion. But it also doesn’t provide protection for the following:

:: Mere ideas

:: Titles, names, and slogans

:: Certain government works

Securing Protection

The good news for authors is that copyright protection attaches automatically upon creation of a work. There are no formalities required. For example, obtaining a copyright registration is not mandatory, and use of the copyright notice is no longer required. However, the formalities can yield significant benefits. More on that later.

Rights and Limits

So the moment you click the shutter and capture a photograph within the fixed medium of your digital camera, you are the proud owner of a copyright. Here’s what that gets you: exclusive rights. Now you’re able to control who may reproduce your photo, prepare derivatives of it, distribute copies, and display it publicly. Where your work is capable of being performed, you may also limit its public performance.

As with everything in the law, though, there are exceptions. Here we limit a copyright owner’s exclusive rights in certain situations, like where fair use may be implicated, for library copying, or to make a work accessible to those with disabilities.

Duration

Most works will be protected under copyright law for the life of the author plus 70 years. In the case of a Work Made for Hire - often where a work is created by an employee within the scope of his employment - protection lasts for 95 years from publication or 120 years from creation. Works created before 1978 will generally fall into the public domain after 95 years, but consult with a copyright attorney to be sure if you have a question about a specific work.

Benefits of Registration

An application for copyright registration costs only $35 (in early 2010) and can usually be filed online with the Copyright Office. Here’s how jumping through that small hoop can help:

Registration is necessary before an infringement suit may be filed

Although you can register a work after you learn of an infringement, the process is lengthy and the expedited fee is nearly $800.

It provides a public record of a copyright claim

Not only can this encourage a would-be infringer to “do the right thing” by providing ownership information for your work, but it can impact your recovery in a lawsuit. Willful infringements are subject to higher penalties.

If registered within 5 years of publication, it will establish prima facie evidence of the copyright’s validity

This doesn’t seem important now, but having a presumption of validity will be tremendously valuable if you ever need to immediately stop the distribution of an infringing work through a preliminary injunction.

If registered within 3 months of publication (or prior to an infringement), it will allow for recovery of statutory damages and attorney’s fees

In the absence of a timely registration, your recovery will be limited to your actual damages and the infringer’s profits. Not only can it sometimes be difficult to nail down, let alone prove actual damages, but also an infringer’s profits could be very small. If you’re successful in your lawsuit, having a timely registration allows you to choose the damages calculation most beneficial to you, as well as provide recovery for those pesky attorney’s fees.

* Please don’t misconstrue this as specific legal advice. If you need help with your own unique situation, you may contact myself or another licensed attorney.

Copyright vs. Trademark

What’s the difference between a copyright and a trademark? Although both protect intellectual property, the basis of each type of protection is different.

A copyright is designed to protect the author or creator of a work. A “work” could be a book, a painting, a sound recording, or a brochure – almost any original work of authorship that’s been fixed in a tangible medium of expression. If I’ve written a book called “The Lifecycle of a Grub,” for example, copyright laws grant me the exclusive right to reproduce my book, prepare derivatives, distribute copies, and to display or perform readings from my book publicly. I can choose to grant some or all of these rights to others via a license, or I can choose to deny them. We give authors these exclusive rights to encourage creativity and originality.

A trademark, on the other hand, is designed to protect consumers. At the root of nearly all trademark infringement cases lies an analysis of the likelihood of consumer confusion. A trademark – which could be a logo, brand name, or even a color – acts as a source-identifier, distinguishing Starbucks coffee from Caribou or Coca-Cola from Pepsi. If I paid $11 to buy a package branded just like my all-time favorite Charmin Ultra Soft toilet paper, and opened it to discover a product that feels like recycled sandpaper, I’d not only be confused, I’d be upset.

When you’re trying to decide what type of intellectual property protection you might need, ask whether you’re concerned about the author’s creative expression itself, or are you concerned about the public’s ability to identify you as the source of a product or service? It’s not foolproof, but it’s a helpful starting point.

* Please don’t misconstrue this as specific legal advice. If you need help with your own unique situation, you may contact myself or another licensed attorney.