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Essay: Copyright Versus Trademark
17 years ago
Every artist is familiar with copyright, the legal protection of one’s work against illegitimate use by others for profit.
Most artists, though, are less familiar with trademark. What is the difference and why is it important?
A work of art, of whatever sort, is copyrighted. It is a physical object with an independent existence in the real world, even if it is an electronic file. It is the expression of an idea.
A proper copyright notice, incidentally, must include either the word “copyright”, spelled out, or the “©” symbol. Other variations, such as a C in parentheses, don’t count.
Generally speaking, at least in Western countries, a work is considered protected by copyright even if it is not registered through whatever legal mechanism exists in the artist’s (or author’s) nation and even if no copyright notice is affixed to the work. In California law, at least, copyright remains with the artist unless it is transferred to another party in writing, and that may be true elsewhere as well. Check and make sure!
A character, on the other hand, is trademarked. It has no existence independent of the work(s) in which it appears. It is an idea, and ideas cannot be copyrighted.
Unregistered trademarks use the “™” symbol; registered trademarks use the “®” symbol.
Look at any Marvel comic book, particularly one dating from the 1990s. Down in the tiny legalese at the foot of the first page, called the indicia, one will find some variation on the following: “[Such-and-so character] and the distinctive likeness thereof are trademarks of Marvel Comics Group.” They don’t use the word “copyright” there, because legally they can’t.
The one similarity between copyrights and trademarks is that they do not have to be registered for their owners to assert them. Generally, unless the trademark is owned by a large corporation, and even then not always, it isn’t worthwhile to pay the fees and go through the hassle of registering a trademark.
The major difference between the two is that protecting a trademark requires more effort and vigilance than protecting a copyright. If another party begins using a trademarked idea, and the owner does not actively defend it, the trademark can be nullified, throwing it into the public domain. That’s happened to a number of big companies, and it’s why authors are so stiff about fan fiction. It could destroy their intellectual property rights.
Most artists, though, are less familiar with trademark. What is the difference and why is it important?
A work of art, of whatever sort, is copyrighted. It is a physical object with an independent existence in the real world, even if it is an electronic file. It is the expression of an idea.
A proper copyright notice, incidentally, must include either the word “copyright”, spelled out, or the “©” symbol. Other variations, such as a C in parentheses, don’t count.
Generally speaking, at least in Western countries, a work is considered protected by copyright even if it is not registered through whatever legal mechanism exists in the artist’s (or author’s) nation and even if no copyright notice is affixed to the work. In California law, at least, copyright remains with the artist unless it is transferred to another party in writing, and that may be true elsewhere as well. Check and make sure!
A character, on the other hand, is trademarked. It has no existence independent of the work(s) in which it appears. It is an idea, and ideas cannot be copyrighted.
Unregistered trademarks use the “™” symbol; registered trademarks use the “®” symbol.
Look at any Marvel comic book, particularly one dating from the 1990s. Down in the tiny legalese at the foot of the first page, called the indicia, one will find some variation on the following: “[Such-and-so character] and the distinctive likeness thereof are trademarks of Marvel Comics Group.” They don’t use the word “copyright” there, because legally they can’t.
The one similarity between copyrights and trademarks is that they do not have to be registered for their owners to assert them. Generally, unless the trademark is owned by a large corporation, and even then not always, it isn’t worthwhile to pay the fees and go through the hassle of registering a trademark.
The major difference between the two is that protecting a trademark requires more effort and vigilance than protecting a copyright. If another party begins using a trademarked idea, and the owner does not actively defend it, the trademark can be nullified, throwing it into the public domain. That’s happened to a number of big companies, and it’s why authors are so stiff about fan fiction. It could destroy their intellectual property rights.
Now say I go to a roleplay chat site and see someone roleplaying, either as a really close and blatant ripoff or a direct clone of him (name, back-story and all)
what legal recourse would I have in each of those cases, to stop the misuse of a character (and images thereof) that I really put a lot of time, effort and money into building up?
That said, my guess in the first case is that the primary issue is misuse of the image; the trademark violation is overshadowed by the copyright violation. Any remedy that would suffice for one would suffice for both, and I believe this is a case where using copyright law would provide the bigger (or at least easier) hammer. If the venue hosting the stolen image has a grievance process, that would be the first resort. A cease-and-desist letter sent to the person who posted the stolen image, or a similar legal instrument sent to the hosting entity, probably would be the next step. After that, a lawyer.
The second case is a really tough call. I honestly don’t know what legal standing would be involved. Again, the first step would be to complain to the hosting entity. Assuming the violater could be located and sent a cease-and-desist letter, I suppose that technically would be the next thing to do, but people willing to do that sort of thing are unlikely to stop for anything short of litigation. Unfortunately, there often isn’t much that can be done about such a case, since most folks can’t afford the time and hassle to punt such malcontents through the goalposts of the justice system.