The Venn Diagram of Copyright and Trademark

I often field questions on how copyright and trademark fit together, because they do compliment each other. To be sure, they have different offices that register them - the Copyright Office (which is part of the Library of Congress) and the Patent & Trademark Office (which is part of the Department of Commerce). They have different symbols - the distinctive © for copyright and ® for trademark. They even have different statutes that establish them - 17 U.S.C. § 101 et seq for Copyright and 15 U.S.C. § 1051 et seq.
image: Rich Renomeron
For all of their differences, however, there is some overlap - much like the Venn Diagrams we all had to do in school. Copyright has its own circle and trademark has its circle - but they can still come together and meet in the middle.

To fully understand how these two work on their own and overlap, it's necessary to briefly discuss what each covers. Copyright protection extends to works of original authorship in eight distinct categories: literary works (e.g. books); musical works (lyrics and melody of your favorite song); dramatic works (e.g. plays); pictorial, graphic and sculptural works (pretty self-explanatory); pantomimes and choreographical works (again pretty self-explanatory); motion pictures and other audiovisual works (e.g. movies and TV); sound recordings (what you hear on your CD of your favorite song); and architectural works (e.g. plans, drawings, etc). The protection starts from the moment the work is fixed in a "tangible medium of expression" which means when it can be read, processed, viewed or otherwise translated into useable material.

Trademark protection, on the other hand, is solely concerned with marks that when used on certain goods or services act as source indicators for consumers to know that the particular item or service comes from that mark owner. A mark is not just the words, design, color or numbers that make up what you see - it must be paired with the goods or services on which it is used to fully function as a trademark. Thus, UNITED by itself doesn't mean much. But, for airline services it is United Airlines, and for moving services, its United Van Lines.

While there are significant differences in the ground that these two areas cover, there is also overlap. The overlap usually occurs with respect to things that would appear to fit into both groups. A good example is logos. Companies sometimes have very distinctive and creative designs that they use to distinguish their products. To the extent that copyright protection is given to works of the visual arts, it would be tempting to think that a logo can function both as a trademark and still claim copyright protection. Whether this actually works, however, depends upon the actual item since it could very well run up against the copyright law's ban on protection for functional designs. A good rule of thumb, however, is that the more detailed, distinctive and overly intricate the design, the more likely it is to be able to claim copyright protection because these factors would tend to indicate a larger degree of originality. And, originality is the hallmark of copyright protection.

Slogans and phrases, on the other hand, are pretty much categorically excluded from copyright protection. One would think that since they are textual, they would get protection. This is in fact, not the case because they most likely lack that minimum amount of originality. The good news is that they are (for the most part) registrable at the PTO as long as they are used to indicate the source of goods or services.

Thus, while these two areas of intellectual property law usually are useful in vastly different areas, there are situations where you can obtain maximum protection for your intellectual property through both the copyright and trademark laws.