Monday, August 27, 2018

The Lowdown on Copyrights, Trademarks and Patents



In light of the recent brouhaha over “cockygate” it’s time for a little rundown on the differences between copyrights, trademarks, and patents, and how they pertain to writers.

What’s a copyright?
Copyright is legal protection for works of authorship. For the written word it covers such things as fiction and nonfiction in all lengths, magazine and newspaper articles, even computer software, manuals, catalogs, brochures, and compiled information like databases. It can also cover dramatic works, motion pictures, audiovisual and sound recordings. Copyright law doesn’t protect ideas, facts, inventions, processes, systems of operations, words, names, symbols or proprietary information, although it may protect the way these things are expressed. A book title can’t be copyrighted. A single word can only be copyrighted in context. You can’t copyright the word “amazon”, but you can form a company called Amazon and copyright the word in a particular font to use for the logo. Doing this forms a trademark.

How do you get a copyright?

Write stuff. Copyright protection is automatic
the moment your work has tangible form. Whether you write longhand, use a computer, or dictate your work into a recorder, you have copyright protection. Only original works can be copyrighted, so, sorry, that fifteen century treatise on milk pox by an anonymous friar can’t be offered up on Amazon under your own name. This doesn’t mean your idea has to be original. There are plenty of updated versions of Frankenstein floating around that use the basic premise of the tale: mad scientist creates a monster that eventually runs amok and destroys him. Even if Mary Shelley wanted to complain, she couldn’t.

Only works published before March 1, 1989 need a formal copyright application. Nowadays, nothing is necessary, but a self-published author can place something like Copyright©2018 by L. A. Kelley in the front matter. It functions as a subtle reminder to others that this is mine, write your own stuff.

What’s the difference between that and a trademark?
Most people get trademark and copyright confused. Trademarks are words, names and symbols used to identify goods and services. A trademark is designed to protect a brand so consumers don’t confuse one similar product with another. You don’t trademark a book series title unless you can prove that the title is part of your specific brand. In the case of “cockygate” the author registered for and received a trademark on the word “cocky” written in an open-access font. Soon evidence appeared the trademark should never have been granted as the Patent and Trademark Office didn’t have the full details of the application. After months of outrage from the writing community and numerous lawsuits the author was told to stick her trademark where the sun don’t shine. She and her bottom-feeding lawyers withdrew the application.

One area of confusion is that trademarks can be words. It’s important to note that the words must be associated with a brand, but the brand does not have to be commercial. Law enforcement agencies can have an image and brand to protect, too. The Royal Canadian Mounted Police control licensing over their image and have been cracking down on trademark infringement for over twenty years. Merchandise with the RCMP name and logo are available in commercial outlets, but vendors pay a ten percent licensing fee to the Mounties.

Technically, trademarks can’t be used without the owner’s permission. This means if you insert one in a novel, the owner can demand removal. The list of trademarked single words is long and surprising. Gerber owns the trademark to “onesie”. “Shabby chic” belongs to designer Rachel Ashwell. The National Association of Realtors owns the term “Realtor”. Marvel comics trademarked “Super Hero” in 1967, but the word “superhero” is okay to use by anyone. Even sounds can be trademarked. The three note NBC chime and the MGM lion’s roar is trademarked, but Harley Davison was unable to get one for its engine sound. My favorite
famous non-trademarked sound is The Wilhelm Scream. It’s a sound effect that cropped up in 1951 and has been used in over 200 films. Since the originator never applied for a trademark and his name is lost in the annals of history, it’s free for filmmakers to use. You’ve heard it dozens of times, but never knew what it was. Now you do. If you’re curious, check out this compilation of The Wilhelm Scream. I bet you recognize it.


A writer can avoid trouble by using generic terms; trash bin for Dumpster, tissue for Kleenex, sports car for Corvette. Frankly, most companies aren’t going to come after a writer for using a trademarked term. The only ones I know who are frothing-at-the-mouth possessive about their property rights, and employ a cadre of lawyers to defend them, are Disney and Marvel (now a Disney company.) I recommend staying away from any mention of their products.

So what the heck is a patent?
Patents are used for inventions and processes. As with a copyright, you can’t patent an idea. In short, patents can be issued for a process (steps to produce a result), a machine, manufacturing (combining materials in a new way), or composition (a novel drug or genetically modified seed.) The only instance for a writer to consider a patent might be in the development of a software program, for example, a different type of grammar check. Even then, the benefits of a patent is debatable. It depends on how the software is used together with the hardware, and what should be protected from a competitor. The software innovation may lie in an apparatus, system, algorithm, method, network, data processing or the software itself. It’s important to remember the patent process is expensive, time-consuming, and a patent needs to be filed in every country where you want protection.