What Can You Copyright and Trademark (and Not)

Copyright Symbol.In response to “Understanding Publishing Rights,” several writers have asked us to be a little more definitive about what you can and cannot copyright and trademark. While a full discussion of this is beyond the scope of this site and our group, Writers in the Grove, we’ve broken down some of the details pertinent to writers.

Copyright law protects what are called works of authorship. These include all forms of literary work including books, magazines, scripts, manuals, brochures, sound recordings, video, etc. These are referred to as intellectual property.

Trademark SymbolTrademark laws protect word(s), phrases, symbols, designs, or a combination of these to distinguish the source of a product, goods, or services from others. You cannot trademark a book, but you may trademark a series of books such as “Nancy Drew” or “The Hardy Boys” as a brand. If the series has a logo, artwork that designates the branding of the work, that may be trademarked, like the Chicken Soup series. If your work includes the concept or creation of a unique item such as the game “Quidditch” in Harry Potter books, this maybe trademarked to protect the words and phrases.

Copyright law does not protect ideas, inventions, facts, words, names, symbols, processes, systems of operations, and other proprietary information, though these could be protected under other laws such as inventions and processes protected under patent law, and some words, names, symbols, etc., may be protected under trademark law. Proprietary information is sometimes protected by trade secret laws.

You may copyright any original artistic work. It may be completely original, or a collage or compilation that makes it “new” and unique. These are known as derivative works. Some derivative works require permission of the copyright holders if the usage goes beyond their copyright license and permissions for fair use and compilation specifications.

There is an international body of law that protects copyrighted work, but on the web, it is necessary to be very specific about your license and permissions for usage. For example, it is well within your rights to make your copyrighted work set to public domain. This means you are giving it away for free and you release all rights to the work for whatever usage anyone may wish to do with your work. That is your choice, and one of the different copyright licenses you may choose. Or not. You may choose to have a stricter license for usage of your work. Thus, on the web as well as in other published works, don’t let the reader/user assume your copyright policy. Be specific about what rights you offer for usage of your work for excerpts and fair use, if any.

Copyright Fair Use is part of copyright law that permits the “fair use” of copyright content to avoid copyright infringement, the illegal use of the content. Fair use includes quotes, excerpts, and pictures of the work, such as a picture of the book jacket for a review article. In general, copyright fair use states that a portion of the work maybe used as long as it does not infringe upon the copyright holder’s rights and ability to license their work. It’s a fine line, so when you can, be specific with what you will and will not allow as fair use of your work. “Fair Use and Copyright and What Every Writer, Self-Publisher and Blogger Ought to Know” by The Book Designer has some excellent scenarios to walk you through fair use examples.

There is also a form of Trademark Fair Use that permits usage of the trademarked item as a guarantee of the First Amendment of the United States and may not apply outside of the country. Generally, the usage of a trademark within fair use allows the use of the term, slogan, or logo within the proper context of the work and without insult, defamation, libel, slander, or harm to the reputation of the company. According to legal experts, the usage would rely upon the trademark owner’s “goodwill and reputation” for allowing such use.

You do not have to register your work as it is considered copyrighted the moment it is “fixed in tangible form.” If you choose to protect that copyright through legal action, you are required to register the work with the copyright offices.

For the writer, let’s be specific with what you can and cannot trademark.

  • Ideas: Copyrights do not protect ideas. This is tricky legally. If it is in your head, a concept or full-blown story, it is not fixed in permanent form, a criteria for copyright. Once you have written it down, typed it up, recorded it, then it is fixed and protected under copyright laws as an expressed idea.
  • Titles: Book titles, article titles, short story titles, poem titles, and other titles may not be copyrighted.
  • Words: Words cannot be copyrighted except as a literary work or other art form as a group or collection, not individually. You cannot copyright the word “purple,” for example. However, words used in a logo or slogan may be trademarked such as Coca Cola (r).
  • Names: The names of your characters cannot be copyrighted, but they may be trademarked. J.K. Rowling trademarked “Harry Potter” and several of the names in her book including the term “muggles,” as proprietary intellectual property. A name of a cartoon character such as Mickey Mouse, or popular toy and game cannot be used without permission and license as these are typically covered by trademark law.
  • Characters: While you cannot copyright the names of your characters in general, if the character is fully-developed and distinctive, such as Harry Pottery, Shrek, or Panem, you may be able to claim copyright, but more likely these would be covered under trademark protections. If you write about a character that is similar to a well-known character, or a character with a similar name, you may be at risk of legal action. Make your characters distinctive and unique from well-known characters to protect yourself and your work. See below for issues dealing with fan fiction.
  • Images/Graphics/Photographs: All images, including graphics and photographs, are artwork subject to copyright. You are not allowed to use them unless their copyright license states you may, or they give express permission, or, if possible, if the usage is within the Fair Use Copyright guidelines. If the works are yours, you are allowed to use them as you wish, and you own the copyright on them.
  • Facts and Statistics: You cannot copyright facts or statistics, though the method they were attained could be copyrightable, your usage isn’t. Can you use them in your written work? Yes, but you may not claim copyright ownership of the data, and must credit the source.
  • Sounds, Music, Video: If you created the sounds, music, video, or other audio-visual work, you are the copyright holder. However, if you used copyrighted visuals or audio in the creation of the work, take care that such usage comes within fair use constraints, or you get permission for use. One of the most common problems for writers is the use of song lyrics in their work, such as an ear worm song going round and round inside a character’s head. If the song’s lyrics are in public domain, such as a song written over 100+ years ago, or a folk song without a specific author, there are usually no problems. If the song is copyrighted, and you use only a line or three, your usage maybe within fair use, though some authors are strict about using even a single line.
  • Use of Brand Names and Trademarks: When possible, use the generic names for brand named and trademarked items in your writing. If you must use the brand name, take care not to tarnish the reputation of the item, or converting the word into a verb or noun. For instance, when you refer to products like Kleenex, call it tissues, and it is “searching the web” not “googling.” If you feel that the story will lose integrity if you do not use brand names and trademarks, check with legal counsel on how best to do so, or get permission to use them.
  • Use of Titles, Lyrics, Brand Names, and Trademarks in Titles: While titles cannot technically be copyrighted, the use of lyrics, titles of famous/popular books/songs (“Stairway to Heaven”), brand names, and trademarks in titles are not allowed without permission, though there are a few exceptions. Always consult a legal professional about such usages.
  • Famous People Names and Characters: You may include famous people by name and their characters in your writing, as long as you do not tarnish or harm their reputation. Similar to product names, famous people are protected under defamation and libel laws, not copyright, though deceased persons may have their name trademarked. The usage of the names and characters doesn’t have to reflect a positive view of their personalities and character, but a fair and representative view of their character. For instance, while you may not accuse a recent candidate for President of the United States of illegal acts without cause and proof in your work, you could refer to him as an example of a womanizer or liar as there is proof that this is representative of him as a public figure.
  • Reviews: Reviews of copyrighted work such as books, movies, games, television shows, etc., are permitted as the writing is considered original work, also protected in the United States (and many others) under freedom of expression laws. Quotes from the copyrighted work under review must be made within copyright fair use guidelines.
  • Fan Fiction: Considered labors of love by fans, fan-authors know they are working with legally protected works. If the work is in the public domain, such as Tarzan, Dracula, The Three Musketeers, and fairy tales, you are free to use it. Check first as a derivation of the work, such as Frankenstein’s monster based upon Universal Studios’ version of the Mary Shelley work is copyrighted by the movie studio, even though the book is now in public domain. Some authors are very strict, others more lenient, and others require license permissions, but most consider it a violation of their intellectual property if the fan-author commercializes (sells) the work. For example, the estate of Gene Roddenberry and the television studios license their worlds to writers to publish books within the Star Trek genre, and tend to be tolerant of fans publishing their stories for free online. It’s a complex dance for permissions, so check with legal representatives first if you choose to sell your fan fiction.
  • Work-for-Hire: If you were hired to write the work or a slogan, you do not own the copyright or trademark, if applicable. This is called work-for-hire. It is typically part of the contract/agreement that the employer owns the rights to the work. This may not apply to contracted and freelance work. For example, if you are contracted to write an article for a magazine, you may own the copyright of the article unless the contract states otherwise.
  • Trademarks May Respect Boundaries: If you are using a trademarked name or brand, be aware that trademarks may be global or be limited to the boundary of a country or region in which they are registered. If the name or brand is not trademarked within the United States but limited only to Europe, you might be able to use it without permission. Check with a lawyer before making such an assumption, and consider asking permission to license the name in this country (it will cost you).
  • Copyrighting Unpublished Work: You do not have to copyright unpublished work. The work is already covered under copyright law by creating it by hand or on a computer. It is recommended that you register your work when published directly with the government Copyright Offices. Register your work when it is at or close to the final draft, not before, as you may have made too many editing changes, and have to resubmit it (with an additional fee).

How to Protect Your Work

To protect your work, no matter where it ends up, here are some quick tips:

  • Date Your Work: Put a date on the page, file, or notepad where you wrote down the idea and started your writing. If you are editing your work, save it by version number and date to your computer. Ensure you have backups, too.
  • Put Your Name on Everything: Ensure that you have your name on everything that is printed or written, typically by the date.
  • Put the Location on Everything: While not necessary, location of when and where the idea originated, and you wrote it down for the first time, has been used in copyright cases.
  • Include a Copyright Notice/License: The © or a copyright statement should be on your work as well. It isn’t a license, nor does it indicate the work is registered (that is the ® mark), but serves as a reminder to others that the work is copyrighted. This gives them zero excuse to say they didn’t know it was copyrighted at the time of the infringement.
  • Keep a Paper Trail: When developing a story or literary work, keep the original notes, handwritten work, and print outs of the various iterations of the work in a folder or notebook. Ensure each has your name, date, and location on it, and the version number to help you keep track. You may never need it, but what are known as work papers are often used in copyright and trademark cases.
  • Give Credit: When you use work that isn’t yours, such as a quote, excerpt, or other content compliant with copyright fair use, give credit. Cite the original author/creator of the work or the current copyright holder. The same applies to permission to use trademarks. Include citations and credits in the copyright area of a book, in the credits in front or back of the book, or in footnotes if applicable. If it is on the web, add links.
  • Register When You Publish: If the work is a published novel or literary work, register it at the time you publish it. If it is an article, poem, short story, or other published work in an anthology or published online, you do not have to register it unless you will be taking legal action for copyright violation.

If you’ve created unique characters, scenes, games, a series name, and other items that may be copyrighted or trademarked, consider registering them for additional protection. Even without registration, you automatically have some protection. Just remember, as we explained in our article on publishing rights, what you create is your income, so protect it, now and in the future. You never know where it will take you.

Resources

This is just the tip of the copyright and trademark ice berg. For more information:

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