Patent vs copyright vs trademark


People who are unfamiliar with the various forms of intellectual property protection often use terms like “patent,” “trademark” and “copyright” almost interchangeably. In reality, these are three distinct forms of protection, each of which is designed to defend your rights to a specific type of intellectual property.

Understanding the difference is critical when you want to ensure that you have the right to fully defend your intellectual property. An intellectual property attorney can provide customized guidance and advice in your unique situation. Nonetheless, it is possible to describe here the three major forms of intellectual property protection.


What Is a Patent?

A patent protects a new invention, which may be a machine, a product, a process or a chemical composition. It is possible to obtain a patent on the design or appearance of an item just as it is possible to patent a new plant species.

A patent does not grant the holder the right to manufacture or sell their invention. Instead, it gives them the right to exclude others from using their proprietary innovation. Thus, if a patent holder notices that a competitor is selling a product that infringes on their patent rights, the patent holder may sue the alleged infringer.

Patents are only valid for a finite period of time. An invention is protected by a utility patent, which is valid for 20 years from the filing date of the patent application. A design patent is valid for only 14 years from its filing date.

While the patent is in force, it is possible for the owner to license it to others who may manufacture, sell or otherwise use the patented subject matter. Patent owners also may sell their rights to another party.

What Is a Trademark?

Trademarks may take many forms, including a single word or an entire phrase. A trademark registration also may cover a design, symbol or a combination of text and a design.

The strongest trademarks are unique and distinctive. Their primary purpose is to identify the source of the goods or services on which they are used. For example, when people see the famous Nike “swoosh” on a pair of shoes, they are immediately able to identify the footwear as coming from Nike.

In the U.S., trademarks are registered for particular goods and services that the owner must identify in their application for registration. Use of the mark in connection with the goods or services must begin in U.S. commerce before a registration can be obtained.

Accordingly, a company or individual may apply for a trademark registration that covers a wide variety of goods and services such as restaurant services, t-shirts and music performances. Before a registration can be obtained, the owner must demonstrate that the mark is actually being used on all of these goods and services. If they decide not to use their trademark on t-shirts, then these goods must be deleted from the application before the mark can proceed to registration.

U.S. trademarks are renewable in perpetuity for 10-year periods. Every 10 years, the owner must submit fees and proof that the mark is still being used in commerce.

What Is a Copyright?

A copyright is used to protect any work of original authorship. While most people understand that a book is copyrighted, they may be more surprised to learn that a painting, sculpture, choreographic work, photograph, movie or software code also may be protected with a copyright.

Copyright protection is automatic in the U.S. As soon as a creative expression is captured in some tangible form, it is copyrighted. However, it is further possible to register the material with the U.S. Copyright Office. Doing so provides the owner with additional means of protecting their original work.

This means that the author has control over reproductions of their work as well as any derivative works. Any public performance or display of their work may only be pursued with the author’s permission. Failure to obtain such permission may lead to litigation.

Typically, the term of a registered copyright is the lifetime of the work’s author plus an additional 70 years.

Which Type of IP Protection Should You Pursue?

If you are an inventor, innovator or entrepreneur, then you may need to pursue one or more forms of IP protection. A software developer could copyright the code on a new program, obtain a trademark registration for the software’s name and get a patent on a process within the program.

Working with a qualified intellectual property attorney is the best way to ensure that your rights are sufficiently protected by patents, trademarks and copyrights.

Author: Jeff Williams

Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.

Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.

It’s Not Unusual to be Denied a Copyright: The Carlton Dance


Copyrighting a Dance
While patent and trademark protection may require years of effort to obtain, most copyright registrations happen fairly quickly. Of course, this is only the case when the material that is submitted for copyright registration is considered appropriate for such registration.

A book, the script for a play, a recorded song and a painting all are examples of items that are suitable for copyright registration. However, is it possible to obtain a copyright registration for a dance?

Actor Alfonso Ribiero, perhaps best known for the role of Carlton Banks on the 1990s television series The Fresh Prince of Bel Air, performed a routine on the show that is popularly known as the “Carlton Dance.” Mr. Ribiero revived the dance during his stint on Dancing with the Stars in 2014. The dance had so far entered the pop-culture consciousness that it also figured in two video games, Fortnite from Epic Games and NBA 2K from Take-Two.

Ribiero objected to the appropriation of his signature dance in these video games, so he decided to obtain a copyright registration on the “Carlton Dance.” Moreover, he filed a lawsuit for copyright infringement against both video game developers.

1976 Copyright Act
Ribiero’s idea to seek copyright protection for a dance wasn’t outlandish. The U.S. Copyright Office allows for the protection of choreography and pantomime. It was provided for in the 1976 Copyright Act, which for the first time included both art forms as appropriate subject matter for copyright protection. Prior to this new law, certain choreographic works could receive copyright protection, but only if they included a dramatic element, characters that showed development and some sort of story arc.

The 1976 act expanded choreographic protection to dance works that did not necessarily follow a plot or have characters. Artists who wanted formal protection of their work submitted it in some form to the U.S. Copyright Office. A video or other visual recording is the most frequent medium in which a choreographic work is submitted for registration. Alternatively, some artists submit a text description along with drawings or pictures. A written dance-notation format also is acceptable. Regardless of the medium, the submission must be in a format that will allow for accurate future performances.

The Verdict
The expansion of the law did not mean that all dances are eligible for copyright protection. Through the years, the copyright office has made clear that social dances and discrete dance steps are not protectable by copyright. A football player cannot register their end-zone dance, for instance.

It seems that the U.S. Copyright Office believes that the “Carlton Dance” falls into this latter category. An examiner at the office responded to Ribiero’s application for a copyright by saying that the movements were a “simple dance routine” that could not be registered.

The examiner described the three main steps that make up the Carlton routine, noting that their simplicity does not rise to the level of being a choreographic work. In conclusion, she refused to register the dance.

Ribiero does have a chance to appeal this decision, and the lawsuit is still ongoing. Nonetheless, things are looking more hopeful for Epic Games and Take-Two. The decision made by the U.S. Copyright Office may have a significant bearing on the civil lawsuit. Already, the defendants in the lawsuit have filed motions to dismiss. Their argument is that because the dance is not protectable as a copyright, it follows that Ribiero should not be able to sue the video game designers. Moreover, the defendants question Ribiero’s ownership of the dance since it was first performed on a TV show that is owned by a network.

Ribiero is likely to oppose the motion to dismiss in the near future in addition to appealing the decision by the U.S. Copyright Office. His success or failure in these endeavors may provide interesting case law for future artists who believe that they are entitled to copyright protection.

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Author: Jeff Williams

Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.

Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.

Copyright Basics

Many business owners have become astute about the critical need to protect their intellectual property with patents and trademark registrations. However, copyrights tend to get overlooked.

Copyrights are a fundamental aspect of intellectual property protection. Relatively speaking, registrations are easy and inexpensive to obtain, yet they provide strong protections. Working with an intellectual property attorney may be the best way to ensure that your company is taking full advantage of the protections that are afforded by copyrights.


What Is a Copyright?

Basically, a copyright protects an original work by an author. A person who holds a copyright has the sole authority to distribute, display, modify, copy or perform the work. Most people know that a book can be copyrighted, but so can articles in online formats and in magazines. The same is true for photographs, paintings, sculptures, plays, movies, music videos, ballets, songs, architectural drawings, computer software source code and many other materials.

Several of the items that are created and used within the course of business may be protected by copyright. This can include flyers, promotional materials, blogs, product packaging, content on the company website, jingles used in advertising and more.

The owner of the copyright is the only individual or entity that has the right to use, modify and distribute the protected materials. Anyone else who wishes to use the material in whole or in part must seek and obtain permission to do so from the copyright holder. If they fail to do this, then they may be prosecuted for copyright infringement.

How Do You Get a Copyright?

As soon as a work is recorded in some tangible form, it enjoys immediate copyright protection in the U.S. The moment your website is ready to be published or your marketing materials are ready for distribution, they are protected.

Registration is not required, but it is recommended. Registration provides enhanced protection. It’s possible for authors to apply for copyright protection through the website of the U.S. Copyright Office. Fees of between $35 and $55 are due at the time of application. The office will request that a copy of the work to be registered be submitted for review and for them to keep on file.

Registrations generally are issued within a few weeks or months. On some occasions, the office will have additional questions about the work or about whether or not the work is suitable for copyright registration. An intellectual property attorney can handle this process for you.

How Long Does a Copyright Last?

If your work is new and was published on or after January 1, 1978, then the work is protected by U.S. copyright law for the author’s lifetime plus 70 years. If the work was not authored by an individual, but by a corporation or other entity, then it is entitled to 120 years of protection from the date of creation or 95 years of protection from the date of publication. In this case, the earlier date would prevail.

Works that are older than these time limits are said to be in the “public domain.” As an example, Mark Twain’s novel The Adventures of Tom Sawyer was published in 1876. This means that it is subject to earlier U.S. copyright law. Anything published prior to January 1, 1923 is officially in the public domain. This means that if you want to record Tom Sawyer as an audiobook or adapt it as a play, you are free to do so.

Are There International Copyrights?

International copyrights do not exist at this time. It may be useful to know that the Universal Copyright Convention and the Berne Convention do help to honor copyrighted works on an international level, and that the U.S. is a member of both conventions.

If you have more questions about copyrights or about how to obtain a copyright registration on one of your original works, then contact Jeff Williams, an experienced intellectual property attorney.

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Author: Jeff Williams

Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.

Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.

Can Monkeys Sue for Copyright Infringement?

People and animals have always had special relationships. State and federal laws are designed to provide protection to animals and to ensure their humane treatment. One court recently found that these relationships do not necessarily give animals the right to sue people in civil court.

The IP Case

An unusual case began in 2011 when David Slater, a wildlife photographer, traveled to Sulawesi, Indonesia. He was on assignment, but there was a moment when he left his camera unattended. Naruto, a crested macaque, was nearby and seemed unable to resist temptation. Working quickly, he snapped several shots, including a series of selfies that is now known as the “Monkey Selfies.”

Slater was delighted when he saw the monkey’s work. In partnership with Wildlife Personalities, Ltd., the monkey selfies were published in a book. Slater and Wildlife Personalities are identified as copyright owners in the publication. However, text throughout the work identifies Naruto as the photographer.

The Copyright Law

Under U.S. copyright law, a photographer owns all rights to the images he captures unless he assigns those rights. Slater and Wildlife Personalities were turning a profit on the book, which they openly acknowledged included the photographic work of Naruto.

People for the Ethical Treatment of Animals, or PETA, filed a lawsuit in 2015 on Naruto’s behalf. Dr. Antje Engelhardt additionally acted as a plaintiff in an attempt to preserve Naruto’s rights. Engelhardt had spent a decade studying crested macaques, including Naruto, in Sulawesi, giving him a close relationship with the monkey. The plaintiffs alleged in the complaint that Slater and Wildlife Personalities were infringing Naruto’s copyrights.

Defendants responded by arguing that the plaintiffs had no standing and that no claim had been stated. The district court agreed with this motion, finding that plaintiffs had not established statutory standing. PETA and Dr. Engelhardt appealed.

The Argument

The Ninth Circuit first needed to decide whether or not PETA had standing to bring the case on Naruto’s behalf. PETA argued that they were acting as Naruto’s “next friend,” a common law concept that is typically used when one individual wants to act on behalf of another individual who is a minor, disabled or otherwise unable to direct an attorney as to their wishes. Generally, the party that acts as a “next friend” must have a well-established, relatively close relationship with the party for whom they are acting. In this instance, the court found against PETA because they could not establish a “significant relationship” with Naruto. Further, the court decreed that U.S. law does not permit an animal to be represented by a “next friend.” Dr. Engelhardt, who arguably did have a “significant relationship” with Naruto, had pulled out of the appeal by this time, which meant that no plaintiffs in the case had actual standing.

The court went even further, arguing that Congress would have to authorize the extension of “next friend” rights so that a person could bring a lawsuit on an animal’s behalf. Nonetheless, the Ninth Circuit acknowledged a case or controversy as described in the Constitution under Article III. The court felt an obligation to weigh whether or not an “incompetent party,” such as Naruto, was receiving adequate protection.

In the decision on the Article III question, the court ruled that the complaint adequately substantiated Naruto’s authorship of the photographs and demonstrated economic harm to the monkey as a result of the infringement on his copyrights. Accordingly, Naruto had standing under Article III.

Ultimately, the Ninth Circuit decided against Naruto because the Copyright Act does not give animals authority to file copyright infringement lawsuits. This lack of standing put an end to the lawsuit, but it sets an interesting precedent at the intersection between humans, animals and the law.

If you need any intellectual property guidance for you or your animal (tongue in cheek) request a free consultation below.

Free Consultation
Author: Jeff Williams

Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.

Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.

7 Daily ways you commit copyright infringement


June 28, 2015

A patent attorney is qualified to advise clients on a number of issues related to intellectual property. One of these is copyright law. Whether you’re aware of it or not, you already own several copyrights. In fact, you’ve been a copyright owner since you made your first finger painting. That’s because you took an idea and made it tangible.

In America copyrights are automatic. From the moment you scribble your thoughts down on paper, they are protected by copyright. It’s possible for a patent attorney to help you obtain a registration of your work with the U.S. Copyright Office, which offers you additional layers of protection.

It’s because copyrights are automatic that they are also so easy to infringe. Millions of people unwittingly commit copyright infringement every day. Most of these instances won’t result in any serious consequences, but others can have serious ramifications. Have you ever done any of these things?

1. Use a Quote from a Speech

Have you ever found a transcript of an inspirational speech and utilized a quote from it in a brochure or on your website? If so, this may be copyright infringement unless you had permission from the owner.

2. Copy a Photograph Online

Most websites don’t have safeguards that prevent people from copying their images. Once copied, those images can be used in a multitude of ways. Chances are good that most online photographs are copyrighted. It’s risky to copy and use someone else’s images.

3. Post a Video to YouTube

It’s fine to post your own videos online because you own the copyright. If you’ve ever posted someone else’s video without their permission, it’s a different story.

4. Use a Popular Song as a Soundtrack for Your Video

That hot new song might make the perfect soundtrack to your cat video, but think twice before using it. That song is copyrighted, and if you post a video that incorporates that song, it could mean trouble.

5. Translate and Distribute a Literary Work

You’ve found a great new poem by your favorite Spanish-language writer. You figure there’s no harm in translating it into English and posting it on your website, especially since you’ll give credit to the author. Think again before you post. Your translation is a derivative work of the original, and you’d need permission to use it.

6. Make a Copy of a Movie

Your favorite movie is finally out on DVD, and you can’t wait for your best friend to see it. The trouble is that he’s not local and money problems make it difficult for him to see movies. You think burning a copy of the movie on a blank DVD and sending it to him will solve the problem, but if you do that, you’ll be infringing a copyright.

7. Circumventing Software Protection

Whether it’s the latest version of an operating system or a hot new game, all software enjoys the protection of a copyright. If you find a way to circumvent the software’s security in order to obtain a free copy of it, then you are infringing that copyright.

The Law Office of Jeff Williams helps people and businesses protect their intellectual property. This not only includes matters related to patent law, but also to copyright protection. As a patent attorney Jeff Williams is well qualified to help you defend your own copyrights and make certain that you don’t run afoul of someone else’s intellectual property. Copyright law and patent law are both complicated subjects, but the practitioners at the Law Office of Jeff Williams can help you make the right decisions to protect your interests.