The Difference Between Copyrights, Trademarks and Patents
Whether you’re an inventor, a writer or an artist, you need to know what these each mean — and which you need to protect your work.
By Alexander Webb
April 16, 2020
“It felt like my heart was being ripped out.”
The first time artist and illustrator Yas Imamura saw her art for sale on unauthorized products online, she was shocked and surprised. Then it happened again. And again. And again.
Intellectual property theft has always been a problem, but it has never affected as many people as it does today. If you’ve taken a photo, recorded a song or written a letter, you’ve likely created a copyright. If you operate a small business, you probably qualify for trademark protection, and if you invent something, you may be able to patent it. But the same tools that make it easy to distribute your work online make it easier than ever to steal.
Intellectual property, or I.P., is everywhere, but almost nobody who is not a lawyer understands how to protect their art, business or inventions. This article is no substitute for real legal advice, but it should give you an idea of what questions you need to ask next. I.P. law is vast, so this will focus on basic terms you’ve probably heard: copyrights, trademarks and patents. Let’s get started.
What is a copyright?
Copyrights protect original artistic works. That includes things like photos, books, movies, songs, paintings, software code, architecture and even the article you are reading right now. Copyrights give their owner the exclusive right to reproduce and profit off the underlying work.
The underlying principle is simple; If you create something original, you get to choose what to do with it. Copyrights are automatic at the time of creation, but you can register with the government to get stronger protections. Confused? Let’s bring in an expert.
“Creators are not required to register their original creative work before copyright exists because rights exist automatically when the work is fixed in some tangible form,” said Tonya Evans, associate dean of academic affairs and professor of law at the University of New Hampshire. “But creators should register it for further protection.”
Registration comes with many real benefits, like the ability to seek $150,000 in statutory damages. If your copyright is not registered, you must seek actual damages, which are often much lower and usually much harder to prove. Long story short, if a dispute arises, your life will be a lot easier if you have registered your copyright.
You also might be much richer. In nearly every country, a copyright created today lasts for at least the author’s life plus 50 years. In the United States and most of Europe, it is the author’s life plus 70 years. If the creator is a corporation, the term is at least 95 years.
That’s one reason the right copyright can be extremely valuable. A hit song, movie or book can plausibly produce royalties well into the life of the creator’s great-grandchildren. And it can do so around the world. There is no such thing as an international copyright, but a host of treaties means U.S. copyrights have at least some protections in most countries.
Copyright registration is easy (no need for a lawyer) and inexpensive, Dr. Evans said. You can do it yourself online, and fees are currently $65 for most registrations, but can be as low as $45. To get started, visit copyright.gov.
What is a trademark?
When most people think of trademarks, they think of brand names like Coca-Cola, Apple or McDonald’s. These are good examples, but the category is even broader.
“A trademark protects a word, phrase, symbol or device — the mark — used in commerce to identify and distinguish one product from another,” Dr. Evans said. The slogan “I’m lovin’ it” is a trademark of McDonald’s, and Coca-Cola was granted a trademark on the design of its curved glass bottles.
Trademarks help businesses and the public by making the differences between products clear. Anyone can start a soda company, but only one soda can be called Coca-Cola. There are many hotel chains, but only one is called the Four Seasons. There are many cafe companies, but only one Starbucks. There are many airlines, but only one Delta.
But just because a company has a trademark for one type of product doesn’t mean other companies can’t use the same name for a different type of product.
It all boils down to “whether the defendant’s use is likely to confuse a consumer,” Dr. Evans said. “For example, someone could have a McDonald’s auto parts because consumers are not likely to be confused as to the source of the goods or expect Big Macs to be served.” This is why Delta Dental, Delta Air Lines and Delta faucets can coexist. Their businesses are different enough that consumers aren’t likely to be confused.
There are only 45 trademark categories for goods and services, which means similar items are usually combined into a class. But it’s not always obvious which class your product or service belongs in. For example, Class 29 includes “preserved, frozen, dried and cooked fruits and vegetables,” but doesn’t include baby food, which is in Class 5. Class 13 includes fireworks, but not matches.
Like copyrights, trademarks can have some common-law protection even if they are not formally registered. But unlike copyrights, trademarks can be renewed forever — as long as the mark is still being used in commerce. So don’t expect to sell a soda using the name Coca-Cola anytime soon.
Filing for a trademark costs at least $225 per class of goods but can easily cost over $1,000 with legal help. Although a lawyer is not required to file, the trademark registration system is more complicated than that for copyrights, and can involve objections from examining attorneys at the U.S. Patent and Trademark Office. You can search for existing and expired trademarks, or file a new application, on its website, uspto.gov.
What is a patent?
Patents protect novel inventions or discoveries like pharmaceutical drugs, complex machinery or advanced software. By prohibiting others from using or importing the invention, a patent essentially grants its owner a monopoly on the innovation, but only for a limited time — generally 20 years. After that, anyone can use it free.
The patent system tries to balance the need for inventors to make money and allowing the public to benefit from advances. The classic example is a new pharmaceutical drug. The promise of a temporary monopoly spurs companies to invest in research and development, which leads to valuable drugs that, eventually, become generic. Both the company that developed the drug (which presumably made money off it) and the public (which has a new treatment) are supposed to benefit.
Patents protect inventions, not ideas, so you can’t patent teleportation or time travel unless you actually invent it. The invention must also be “useful” and “non-obvious.” It goes without saying that millions have been spent on legal fees fighting over these terms alone.
Unlike copyrights and trademarks, patents operate under a “first inventor to file” system. That means failing to register your invention can have disastrous consequences if someone else registers before you — even if you invented it first.
Because patents preclude rivals from using new inventions, and what is “useful” or “non-obvious” can be subjective, they can be the subject of heated litigation. Elon Musk once described patents as “a lottery ticket to a lawsuit.”
The complexity of patent law and the propensity for lawsuits in this space means that you will want a lawyer to move forward with a patent. The Patent and Trademark Office says on its website that it always recommends “using a registered attorney or agent” to help file a patent application, but you can file an application without one. The office offers legal resources including videoconference and phone assistance if you want to file a patent without a lawyer.
Google Patents is designed to help you search existing inventions and discoveries.
In theory, a do-it-yourself patent application can be relatively affordable, with total fees under $1,000. In practice, filing fees and legal representation for this highly technical process can easily push costs well into the thousands, if not tens of thousands. Learn more about patents at the Patent and Trademark Office.
One trap to avoid: The ‘Poor Man’s Copyright’
No matter what type of intellectual property you have, if you believe the work has value, there is no substitute for actual registration.
Mailing yourself a letter with your idea or invention, commonly known as the “Poor Man’s Copyright,” offers you “no additional protection” beyond what simply putting your ideas on paper already grants, said Dr. Evans, who called it a “myth that continues to be perpetuated.”
Where to get help
Let’s say you have more questions but don’t have the budget to hire a fancy lawyer — is there anything you can do?
A host of legal aid organizations collectively known as Volunteer Lawyers for the Arts provide free or affordable legal advice for artists or small businesses. These independent organizations generally operate statewide, so search for your state’s chapter.
If you’re trying to obtain a patent, the Patent and Trademark Office has a program that offers inventors and small businesses free legal assistance.
And if you think you might have a lawsuit on your hands, intellectual property lawyers will often provide free consultations to help determine if you have a case. Some lawyers will represent you at no upfront cost in return for a fraction of the potential winnings.
If you can’t or don’t want to go to court, there are other ways out. Ms. Imamura, the artist, transitioned into book illustrations, and her publisher now wages those battles for her.
“It’s a huge weight off my shoulders that someone else is fighting for my intellectual property,” she said. She also found some success calling out people who copy her work. “Sometimes they’ll just take it down if you write them.”
One counterintuitive strategy is to give up on the idea of intellectual property protection at all. Leo Babauta, creator of Zen Habits, releases all his work copyright-free and says on his website that it hasn’t hurt him. “You can’t steal what is given freely,” he said. “I call this sharing, not piracy.”
Whatever path you choose, it’s important to make sure you understand your legal rights. As a small-business owner or artist, your intellectual property may be the most valuable asset you own. Make sure you treat it that way.