Copyrights, Patents, and Trademarks: What’s the difference?
Copyrights, patents, and trademarks all provide intellectual property rights protected by federal law. However, that’s nearly the extent of the similarity, and the differences among them are significant and important to understand. A copyright, as explained above, protects the author’s right to control the duplication and distribution of copies of original and particular creative or intellectual works, and the financial rewards thereof.
A patent is the federal protection of an invention, which provides its author with the sole ability to license the use of that invention. There are three types of patents: 1) utility patents for inventions of a machine, process, or material; 2) design patents for original ornamental designs of a manufactured good; and 3) plant patents for discovery of a new variety of plant (such as a new breed of rose or apple). Abstract ideas are not patentable; rather, patents will only be approved for inventions and ideas that are useful, that is that can be applied to the manufacture of a goods and services. One cannot patent a mathematical formula, geometric shape, or philosophical idea. But one could patent the detailed and specific process of applying a mathematical formula to a manufacturing process in a new way to improve the product. A patent must specify the precise mechanism or process for applying the idea, not merely the abstract idea or suggestion for such a mechanism or process.
A trademark is a word, symbol, or name used to indicate the source of goods or services and distinguish them from other goods or services. Trademarks prevent others from using the same word or symbol to identify or market similar goods or services, rather than preventing others from offering those goods or services. Just as a patent will not be issued for abstract ideas, a trademark will not be issued for generic words or images that do not meet a threshold for originality and specificity. For example, one could not trademark the name “Running Shoes” for a new shoe design because that name is too generic. Similarly, one cannot copyright a sequence of notes that sounds just like a major scale or a common harmonic progression — a copyrightable musical work must be original enough to distinguish itself from other works that use similar generic musical elements.
Whereas copyrights are governed by the U.S. Copyright Office, patents and trademarks are governed by the United States Patent and Trademark Office.
The U.S. Copyright Office.
After the Copyright Act of 1790, copyright registrations and claims were handled by the clerks of the U.S. District Courts, the lowest level of federal courts. As part of the Copyright Act of 1870, the job of registering and administering copyrights shifted to the Library of Congress, the federal agency created in 1800 for the purpose of holding the books and records important to the administration of the federal government. By way of a Congressional appropriations act, the United States Copyright Office was created as a separate division within the Library of Congress, to be led by a Register of Copyrights, to be appointed by the Librarian of Congress (who, in turn, is appointed by the President of the United States). The total budgeted appropriation for the U.S. Copyright Office for the 2020 fiscal year is about $93 million.
Copyright Registration and Deposit Requirements.
The Copyright Act of 1790 provided for a copyright term that would last “fourteen years from the time of recording the title thereof in the clerk’s office” (emphasis added). Furthermore, the act provided that no copyright would be recognized unless the author “shall before publication deposit a printed copy of the title of such [work] in the clerk’s office of the district court where the author or proprietor shall reside.” However, the Copyright Act of 1976 greatly relaxed the registration requirements for copyright protection. Since January 1, 1978, there has been no requirement that a work be registered with the Copyright Office to obtain copyright protection. However, in order to file a suit for copyright infringement, the author will have to register the work prior to filing the suit. In other words, creative works are currently eligible for copyright protection at the moment of their creation, regardless of whether the author takes any steps to register them or mark them as copyrighted.
When a work is registered with the Copyright Office, a copy of the work must still be deposited with the registration (or, two copies if the work has already been published). Either musical notation or a recording will suffice for a musical work copyright; obviously, a copy of the recording is required for the deposit for a sound recording copyright.
A notice of copyright may be affixed to a work to indicate that it has been copyrighted, but such a notice is no longer required.
Derivative Works (including Arrangements and Remixes) and Compilations
The copyright owner of a musical work may exclude others from making derivative works based on the preexisting copyrighted work, such as an arrangement, re-mix, or other reworking of the original musical material. The copyright owner may also create a new derivative work based on their copyrighted preexisting work and copyright the new work as a separate, copyrighted work. The newly-copyrighted derivative work would cover only the modifications to the original work that are expressed only in the new work.
A new musical arrangement of a preexisting work would be one common example of a derivative work. For example, a string quartet arrangement of a song originally for solo piano would be considered a derivative work, which would require a license from the copyright owner of the original song (unless it is in the public domain). A remix could be considered a type of arrangement, in which the elements of a recorded popular song are rearranged into a new audio “mix”, again requiring a license from the original song’s copyright owner.
As with any other copyright, the owner may license others to make such derivative works on whatever financial or other terms and conditions as she may choose. However, the licensed author of the new, derivative work will only own the copyright to the new work to the extent the work contains original and non-trivial modifications to to the preexisting work. The licensed author of the new derivative work will not thereby own any portion of the copyright to the preexisting work solely by virtue of having authored a licensed derivative work.
A compilation of preexisting musical works into a print music book or album can also be considered a new copyrightable work to the extent the compilation consists of some demonstrable creative effort to arrive at the particular combination of works. The copyright in such a case would extend only to the originality of the choices made in creating the compilation, rather than in the separate musical works making up the compilation. For example, a music book or album that compiles the “Greatest Power Ballads of the 1980s” could be copyrighted as a compilation, thus excluding others from copying that particular collection of songs.
Song Titles, Lyrics, and Band Names.
A song title is not a copyrightable work. There is not enough unique and original content to the song title to grant it an independent copyright. So, if you come up with a new song, you are free to use a title for the song that has been used before.
However, there is an exception to this general rule. Some song titles have become so well known and associated with particular songs or artists that to copy them might constitute an action for unfair competition by appropriation. This might even apply to the use of a famous song title for a different service or product. For example, the Red Hot Chili Peppers sued a television producer for making a TV series called “Californication,” which was the title of one of the Red Hot Chili Peppers best-known songs. That suit was settled out of court, so we don’t know how it would have been decided. But an action for unfair competition is not a copyright action because there is no copyright involved in a song title.
Another exception to this general rule is that an artist could obtain a trademark on the name of a song that has become a sort of brand for their image. David Bowie, for example, registered a trademark in the phrase “Ziggy Stardust.” But again, a legal action based on this would be a trademark claim, not a copyright claim.
Song lyrics are an integral part of a vocal song, and are thus an element of the song copyright. Song lyrics, if they are original enough, could also be copyrighted separately apart from the songs to which they are related. Some lyrics are so generic and simple that they might not be separately copyrightable and thus their copyright value would always depend on their context as lyrics joined to a melody or other musical expression.
Band names are also not capable of being the subject of a copyright, as they are not substantial enough to constitute a creative work. However, a band name could be registered as a trademark, assuming it is unique and has not been previously trademarked. Trademarking a band name might also be a good idea as it could help settle any later disputes between band members over who owns the name and what happens to it if the band changes membership. Even without a federal trademark, a band with a strong reputation might still have a legal cause of action against a competing band for unfair business practices, but they would have to prove that their use of the name preceded that of the new band and that they would suffer financial harm if the new band were to use the same name. Some bands even go so far as to trademark their band logos to protect them from competition (for example, the Rolling Stones’ iconic tongue logo or AC/DC’s lightning bolt logo).
Note that trademarking a band name or logo is not free. With the legal and application fees, the cost could be close to $2,000 to properly secure a trademark. Bands will only want to pay that cost when they are reasonably certain that there is something worth that much to protect. But certainly, the legal fees of fighting off a band using a similar name would be much more costly than the cost to trademark the name, so bands should not wait too long to secure that protection once they begin to establish a reputation worth protecting.