intellectual property

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. (more…)