In my years of perusing crafting forums, I've found that most people use the terms "trademark" and "copyright" interchangeably. It is understandable; they are both methods by which intellectual property can be protected. But, in what ways are they different? Lets take a look at a few.
Different Purposes
Copyright is written into the U.S. Constitution and it is intended to encourage the creation of artistic works by giving authors the exclusive right to exploit said works for a period of time. Imagine that you release a film and, immediately afterward, someone put the whole thing on YouTube for free because you have no ownership of it. Or, you write and perform a song, a studio just takes it, gives it to someone else to sing and they sell a million copies. Can you imagine being a creator but having no control over your creation? This was the case way back when copyright laws were first enacted and I'm sure you can understand why people would hesitate, if not outright refuse, to make and release creative content if they couldn't own it and control how and when it could be used by others. This is the purpose of copyright - to allow artists to have robust ownership rights over their own original creations in order to ensure that art and creativity are given the opportunity to progress and thrive.
Trademarks, on the other hand, are 100% commerce-based and are used to protect business names, product names, logos and identify the source of goods and services. You cannot register or keep a trademark that is not being used in commerce either currently or in the near future. You also usually cannot register or use a mark that is already in use by a different entity within the same category of goods and services. This means that, no, you cannot name your computer company "Apple" and you cannot name your airline "Southwest." How confusing would that be? Going to buy a laptop and not knowing which "Apple Computer" is the brand I'm looking for? Going to book a flight and ending up on the wrong "Southwest?" The protection of brand names and prevention of consumer confusion are the main purposes behind trademark laws.
Different Protections
Originality and creativity is the sin qua non of copyright; in order to obtain or be eligible for copyright protection, the work must be original to the author and demonstrate at least a modicum of creativity. On the other hand, while some trademarks show some creativity in that they are made up, or "fanciful," words ("Exxon" or "Clorox" for instance), plenty of trademarks are definitely not original or created from scratch ("Apple" again comes to mind).
Because trademarks don't have to be original, I have seen my fair share of people freaking out on the Internet about businesses "owning the English language!!!" and its usually in response to someone getting into trouble for using a company's slogan or brand name. Trademarks do limit the way we can use certain words in certain contexts but it is generally pretty circumscribed. I can't call my airline Southwest but I can freely use the word southwest in almost any other context.
Different Statutes
It is not surprising that copyright and trademark are governed by different statues; they are different laws after all. But, I wanted to touch on the fact that the Lanham Act, the law governing trademarks, does not have provisions for doing "takedowns" like the Copyright Act does.
In 1998, the Digital Millennium Copyright Act ("DMCA") was passed as a massive statutory scheme that intended to make it easier for copyright owners to remove infringing material from the Internet. [1] It also set up a framework for service providers to obtain "safe harbor" from being sued for infringement over the material it hosted. There are no such provisions in the Lanham Act so, for a long time, service providers and websites just used the DMCA provisions for trademark claims as well. But, when a company lost a legal claim because they used Facebook's copyright takedown process for a trademark claim, this practice began to change. Now, it is a hodge podge. Because the Lanham Act does not offer its own guidance, Internet-based companies use whatever method they believe is suitable to manage alleged trademark infringement on their sites. This can lead to unfair situations at times.
For instance, on Etsy, when a business claimed that another business was using its trademark and filed a takedown, it used to be that the accused infringer could file a counter-notice challenging the validity of the original takedown just as they can do with a copyright claim. Now, Etsy does not allow counter-notices for trademark claims. So, if someone - anyone - accuses you of trademark infringement on Etsy, there is no recourse regardless of the merit of the claim. If your item is not infringing at all or there is an applicable defense for the use, there is still nothing you can do. Your item will be removed and that's that. In this way, trademark holders wield considerable power to control otherwise legal usage of their marks online. As you can see, the difference between copyright and trademark can be especially stark if you are ever accused of infringing online.
The Takeaway for Crafters
Although it is understandable why people use copyright and trademark interchangeably as they both offer protection for intellectual property, they protect different things for different reasons using different methods. Being aware of these differences is another tool the savvy crafter can use to protect their creations in an online environment.
[1] 17 U.S.C § 512.
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