IP Jungle Survival Guide: Copyrights and Trademarks in the Wild (Part 1)

This is the first post in an ill-defined series on legal matters pertaining to intellectual property creation, development, and defense. Please read our intro post for back-story on why and, most importantly, some disclaimers.

This month’s resolution to the web of suits and countersuits between Marvel and Ghost Rider co-creator Gary Friedrich has brought to light some deeply rooted misunderstandings of trademark and copyright law. These were given greater voice in this week’s extra-legal conflict between artist Sean Murphy and Marvel. (I won’t recap them here, but you can follow those links for nicely succinct summaries.) Both instances involved disputes over what copyright and trademark protection affords so they serve as instructive examples of these legal intricacies, not the least of which is a pervasive confusion over the differences between the two.

Shall we do some defining? Let’s. Copyright protects creative work and its author, while trademark protects the logos, brand names, and other marks used by a business in the course of selling that material (thus the “trade” part.) The character and idea of Superman is copyrighted and, depending on which judge or lawyer you are, it contains several copyright-protected elements like the name of the planet he’s from, the newspaper he works for, and the villains he fights. The symbol on his chest, however, is a trademark, as it’s used to sell merchandise. So is the logo on the covers of his comic books. These two protections have different lifespans and rules for keeping them active, and they don’t have to exist simultaneously. For instance, if DC let their Superman trademark registrations expire but the copyright protection was still active, you or I could publish a non-Superman related book using those trademarks. (Not sure what that would be — super-gardening?) If their copyright expired but the trademark did not, the converse would be true: you or I could publish stories about Superman but without those long-established symbols and logos.

So what does this mean for you, brave author? Well, for one, it’s worth knowing that the laws governing both of these protections favor you. The law makes it difficult for a challenger to wrest control of your creative work away from you and, provided that you’ve kept up your paperwork, it’s really difficult for a challenger to wrest control of the marks you’ve used to establish a presence in the marketplace. America is great that way — we don’t want business interrupted, and we especially don’t want authors to stop creating. But there’s still some stuff you have to do and just, well, know about. Since copyright is so straightforward, we’ll start there.

Copyright: Your Bowie Knife in the IP Jungle

You know what about that novel you just wrote? You own it, and you started enjoying the benefits of copyright protection as soon as you wrote it. Registering it with the copyright office doesn’t hurt, and it can certainly make things smoother if you ever had to defend the copyright at trial, but it’s not required to establish your ownership, at least as long as you live in the U.S. Unlike trademarks, copyright protections are common law; you make it, you own it. The novel has to be original, of course, and the ideas within it can’t be under someone else’s copyright protection (no Superman novels for you), but barring those basic matters of common sense, no one else can exploit the ideas in your novel in the same way or in any way without coming to an agreement with you first.

There’s an elegant beauty to U.S. copyright law. It prevents others from taking your ideas and financially benefiting from them at your expense, which in turn encourages authors to create. At the same time, copyrights have a built-in expiration date; provided that you haven’t signed over your creation to anyone else, your estate only enjoys that protection for a limited amount of time after your death (depending on the laws in place when the work was created). This allows all creative work to eventually become a part of the larger cultural fabric, meaning today’s cultural heroes will, in centuries to come, be as legendary and essential as Robin Hood, Achilles, and Sherlock Holmes are to us.

Here are a few misunderstandings about copyright that deserve some attention:

If You Create IP for Someone Else In Exchange for Money, That Someone Else Has the Copyright

FALSE   I know that sounds counter-intuitive, but, as mentioned, copyright laws favor the creator. In order for someone else to enjoy copyright protection for something you’ve created, there must be an agreement in place before it’s created, or an agreement transferring ownership after the fact. That means that if you write a Star Wars novel for Lucasfilm without a contract and you introduce a new alien race within it, Lucasfilm can’t use that alien race in something else; you didn’t grant Lucas ownership of those characters, even though they came into being while you were working on a project for them. At the same time, these characters are probably not much use to you since they exist in the shared Star Wars universe which is under Lucasfilm’s copyright protection. Crazy? YES. And that is why Lucasfilm (and any other IP company) would NEVER let something like this happen. You should be just as vigilant. If a buddy calls and says, “Hey, I’ve got this property I’m working on; could you work up some character designs?” then you say in response, “Buddy, you know I love you, but we need to have some contracts in place. And also, I meant that I love you like a friend not, well, you get what I mean.” If you’re wondering why the estates of Superman’s creators have recently regained the copyright to certain elements of the Superman mythology, this nuance is why; those particular materials were created before they submitted the ideas to DC and signed any contracts defining IP ownership. Even though DC paid them to further develop the material for publication, the creators retained the copyright to what was created pre-contract.

If You Create Material Using Someone Else’s IP, That Someone Owns the Material

FALSE   First of all, before we get into the reasons why, don’t do this. I mean, come on — you really want to be the guy selling unlicensed Star Wars books on the black market and spending the meager dollars you earn on lawsuits? Would you want someone doing that to your IP? Of course not. But anyway, as already mentioned, no one can use your creative material without you agreeing to it first. This was the interesting wrinkle in Sean Murphy’s case; he created a Wolverine book, Marvel said they owned it by default, Sean’s lawyers disagreed, and now the material is consigned to history’s trash heap, never to be seen again. Marvel owns the copyright to the underlying idea of Wolverine (so they’re protected from Sean’s exploitation of it), but they don’t own his material expression of it.

If You Create Material Using Someone Else’s IP, But Don’t Make a Lot of Money With It, It’s OK

FALSE   This particular facet of the issue is engendering much heated, emotional debate at the moment, because selling drawings of characters under copyright protection is a long and beautiful tradition in the comic book community. Fortunately, matters of law are pretty cut and dried, so it’s easy to slice through all of that. Copyright infringement is still copyright infringement no matter how it was executed, and no matter what level of severity the consequences are. Is it copyright infringement if you make your own Superman comic and leave only one copy in your bathroom? Yes. Will anyone ever care? Most likely not, unless you’re really close with Warner Brothers executives. Copyright enforcement is the sole responsibility of the copyright owner, so it’s true that if an infringement is invisible or ignored (that bathroom comic, for example) then there likely won’t be consequences, and that’s also true if a whole category of infringement tends to be consciously ignored (convention sketches, for example). But both of those instances are still infringement, you are still an infringer, and it remains the copyright holder’s option to enforce their protection. This is good news for you if you’re an author of original work (again, you’ve got a wicked Bowie knife in copyright protection). It’s not good practice to engage in infringement in the hope that nothing bad will ever happen; much better to seek out a one-time license from the copyright holder instead.

If You Don’t Use Your IP in the Marketplace, Don’t Register It, or Otherwise Let It Rot, You Lose the Copyright

FALSE   Nope, that’s trademark! More on that in Part 2.

2 thoughts on “IP Jungle Survival Guide: Copyrights and Trademarks in the Wild (Part 1)

  1. Excellent article. But I recommend substituting the phrase “Copyright: Your Large, Anonymously-Designed Knife in the IP Jungle,” just in case Jim Bowie’s estate comes sniffing around.

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