RIGHTING THE WRONGS: Copyrights and Trademarks

Have you ever seen misinformation being spread over the Internet? The same incorrect story or fact gets repeated over and over again, and there’s little you can do about it. Oh sure, you can “reply to all” when someone sends you one of those “Bill Gates will give you $500 for forwarding this email!” emails… but when you see blogs and “reputable” websites repeat the same false story all the time, there’s not much you can do… other than get your own website and try to set the story straight. This is what I want to do with copyrights and trademarks. There’s so much misinformation out there about them, and the truth of it needs to be set free.

I see people using the terms incorrectly all the time. Several times a week, in fact. On an Internet message board, for instance, you’ll often see a question like “How can Microsoft copyright the word ‘Office’?” or “How can I tell if this 1920s cartoon character is still copyrighted?”. What these people are doing is confusing copyrights with trademarks.

Copyright is a legal protection that can be applied to an “original work of authorship”. In a nutshell, only books, music, motion pictures, computer software and a few other types of “creative work” can be copyrighted. In the United States, the Copyright Act of 1976 generally gives the owner of copyright the exclusive right to: a) reproduce the copyrighted work, b) to distribute copies or recordings of the copyrighted work; c) to perform or display the copyrighted work publicly; and d) to prepare derivative works of the copyrighted work item. So if you were to write a book, you and you alone would have the right to reproduce and distribute the book for a certain period of time. As mentioned, you and you alone would also have the sole right to make derivative works: translations of the book, film versions of the book, audiotapes of the book, etc. There is no legal requirement for you to officially register your work with the Copyright Office of the Library of Congress, although this would certainly make any subsequent legal battles much easier. Copyright law also provides a mechanism for compulsory licensing. If you write a song, for instance, you cannot prevent anyone else from singing that song. But you can demand royalty payments from them.

Trademarks are “words, names, symbols or devices” used in commerce to distinguish one brand from another. So a company’s logo, slogan or product names can be trademarked, but the products they make may (or may not) be eligible for copyright. “Microsoft Office” is a trademarked term, not a copyrighted term, and the actual Microsoft Office program itself is copyrighted. Trademarks cannot be used by another company in the same line of business. So IBM couldn’t trademark “Office” for a business productivity suite, but a carpet company could trademark “Office” for a line of industrial-use carpet. This particular rule is why Microsoft trademarked the term “Windows NT” and not “NT” alone: the “NT” trademark was owned by Northern Telecom, who is in a similar industry to Microsoft.

Also, whereas copyrights inherently belong to the person who created the work, trademarks must be defended. You have probably heard stories about a large company sending letters to DJs or news anchors asking them to stop using the term “Kleenex” on the air and instead refer to it as a “facial tissue”. They do this because if they don’t send out such letters, another company could market their own brand of Kleenex. If Kimberly-Clark, the makers of the Kleenex brand, took the upstart company to court, it’s likely that Kimberly-Clark would lose the case, since “Kleenex” had lost its “uniqueness”. This is also why companies like Google and Adobe try (fruitlessly) to prevent people from using the terms “googling” and “photoshopping”: if enough people use those terms in common language, the “uniqueness” is lost and the trademark ceases to exist.

It all becomes especially interesting when copyright and trademark collide. Consider the example from the opening paragraphs of the “1920s cartoon character”. It’s entirely possible that the copyright(s) for any works featuring that character have lapsed. The work can then be said to be in the “public domain” and can be reproduced by anyone without legal penalty. In fact, many of the $1 DVDs at your local dollar store are formerly copyrighted works that have fallen into the public domain. However, if one of those DVDs contains a recognizable character, that character might still be trademarked. In other words, if Spiderman was a 1920s cartoon character that had lapsed into the public domain, you could take an old Spiderman movie, burn it to DVD and sell as many copies as you wish. You could also write a new story based on the movie. But if the term “Spiderman” and the character itself (that is, the actual image of the costumed man) were still trademarked, you could not use these in your story.

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