Copyright Versus Trademark: What’s the Difference?

A few weeks ago, Taylor Swift (yes, her again) filed for trademark protection (again) for various catchphrases related to her latest album, 1989, such as “This Sick Beat” and “Swiftmas.” Even though musicians do this all the time for merchandising purposes, for some reason it’s particularly newsworthy when Swift does it. But what grabbed my attention this time wasn’t the inexplicable backlash she got (if Ed Sheeran had done it, would people have been so quick to judge?), but the factually inaccurate headlines that went along with it.

Taylor Swift Moves to Copyright the Year of Her Birth

Taylor Swift Copyrights ‘1989’

TSwift Wants Copyright for ‘Swiftmas’

How could it be, I wondered, that this many professional news outlets didn’t know the difference between copyright and trademark? As it turns out, they did, and most of those headlines were swiftly (heheh) updated. But it reminded me that this is an issue that pops up often in my own law practice, so I thought I’d make my first post of 2016 a brief primer on the distinctions between copyright and trademark. And since TSwift has been a regular presence on my blog this year (what can I say? I’m a fan), I’m going to use some of her merch to illustrate my point, so let’s get cruising, can't stop, won't stop grooving….

Copyright Is All About Art

Copyright law protects “original works of authorship fixed in any tangible medium of expression” such as photographs, film, paintings, music, writing, graphic design, performance. In other words, art. Looking at the t-shirt below, there are some things we can say right off the bat that fall into copyright territory. The layout and design would all be covered by copyright, as would the color choices. See the way the polaroid cuts off her eyes and lower body? That’s an artistic choice made by the photographer, so that would be covered by copyright. The font choices for the tour dates would also fall into this category. 

In fact, pretty much everything about this shirt would by protected by copyright law because someone made artistic choices about the way this shirt would look. 

I should note, however, that copyright generally does not apply to physical objects, merely their design. So while the physical shirt itself would probably not be copyrightable, the design of the shirt is. Here are some other important notes about copyright you should be aware of.

  • Copyright protection attaches at the moment of creation. There’s a fallacy that “copyrighting” is some affirmative act you have to take, but that’s not how it works. Copyrighting is not an act you engage in. All artistic work is given copyright protection automatically.
  • Copyright does not protect ideas, facts, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. There must be a minimum level of artistic expression to qualify for copyright protection.
  • Once your work is created, the copyright will last for the rest of your life plus 70 years. I’ve written ad nauseam about this issue.
  • Once you discover that someone has infringed your copyright, you have three years to bring a lawsuit. If you fail to do it in that timeframe, the statute of limitations runs out and you’ll lose the right to sue.
  • You cannot sue for copyright infringement unless you register the copyright at the U.S. Copyright Office website.

Trademark Is All About Business

Trademark law protects anything that distinctly represents a company, product, or service in the marketplace; things like business names, catch phrases, slogans, store designs, product designs, website designs, and logos. Trademarks are business assets; whereas copyright protects all art whether or not the artist intends to profit from it, trademarks are all about identifying your brand in the business world and ensuring that others can’t profit from that association. 

In the shirt below, “shake it off” is displayed prominently. We all know the song: it’s one of the biggest hits of the year, and played to such an extent that the phrase is distinctly and perceptibly linked to Swift in the public consciousness. It’s become part of her brand, a signifier that you’re dealing with something inextricably related to Swift. So why shouldn’t she be able to profit from that association? 

It’s crucial to note that just because Swift trademarked “shake it off” doesn’t mean you can’t sing the song, play it for your friends, or use it in your daily speech. But it does prevent other businesses from using the phrase in such a way that they could profit from it and potentially funnel earnings away from Swift. Basically you can’t print up a bunch of homemade t-shirts with “shake it off” emblazoned across it because you’ll be taking profits away from Swift and wrongfully associating yourself with her. That’s no bueno.

Here are some other important things you should know about trademarks:

  • Trademark protection attaches upon the use of the mark in commerce (or a stated intent to use in commerce) and must be associated with a certain class of good or service. A trademark cannot exist in the wild without that association.
  • Trademarks have to be distinct to avoid a likelihood of confusion in the marketplace. The more distinct and original they are, the more likely they’ll qualify for protection. For example: “Burger King” is distinct, while “Burger Restaurant” is generic. Guess which one gets trademark protection?
  • Trademarks have an indefinite lifespan because they are business assets.
  • There is no statute of limitations for filing a trademark infringement suit, but if you fail to defend your trademark even after someone clearly infringes it, you could lose it.

When Copyright And Trademark Overlap

Periodically, copyright and trademark will overlap, typically when artistic expression is used to make a trademark, like a logo or website. For example, the Twitter logo is protected by copyright because it is artistic expression - as in, it was designed by an artist who made artistic choices about it - and protected by trademark because it is used in commerce as the face and brand of the company.

I could go on, but I think that’s a good enough start. Now that you know the difference between copyright and trademark, the next time a well known publication gets it wrong you can shake it off and tweet them into a deep and spiraling shame. Cheers!

Greg Kanaan

The [Legal] Artist, Boston, MA, USA