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.

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