Sunday, October 15, 2006

The Name Game: Is It a Copyright, Trademark or Patent?

(An excerpt from Copyright Companion for Writers, by Tonya M. Evans-Walls, Esq. now available at,, and your local bookstore)

Copyright 2006 Tonya M. Evans-Walls, Esq. (). Limited license to copy and distribute this post provided such copying and distributing is of the entire post, including copyright and contact information.

No one word is more misused or more misunderstood by writers than the word "copyright." This single word creates such confusion and lends itself to so much misinformation because rumors, assumptions, and complicated changes in the law make it difficult for writers to separate fact from fiction. But because copyright consists of such a valuable bundle of rights, it is imperative that writers fully comprehend the nature of copyright and the process by which it is protected.

Writers are not the only ones confused by the word "copyright." More than a few business-savvy agents, publishers, and even attorneys, who are in the business of negotiating rights, have a woefully inadequate understanding of the nature of copyright. This is particularly troublesome because of the way the publishing industry is set up for traditional publishing through the major New York publishing houses. Agents and legal professionals are the gatekeepers between writers and publishers, providing writers with access to the editorial decision-makers and providing publishers with a steady stream of available literary properties. Thus, writers often—and unquestioningly—trust these industry professionals to protect their interests.

But the explanation that "it's always done this way" is simply not good enough when valuable rights are at stake. And although you may very well not understand all of the legal intricacies of copyright, for you to successfully protect your copyrights and to enjoy potentially lucrative financial benefits from successful negotiations to license and sell your rights, you must first understand how copyright is created and protected.

Simply put, what you don't know about intellectual property ownership can jeopardize your rights and potentially expose you to legal liability. So let's take a closer look at the differences between the various types of intellectual property.

Copyright: A copyright protects an author's original artistic or literary work, whether published or unpublished. Under copyright law, the term "author" has a special meaning: the creator of an original literary or artistic work. Thus, the word "author" applies not only to writers but to photographers, singers, painters, sculptors—anyone who creates a literary or artistic work. Examples of literary and artistic works include manuscripts, book covers, song lyrics, sheet music, musical scores, paintings, sketches, sound recordings (music), films, and photographs. And those lists are not all-inclusive.

Trademark: A trademark protects a word, phrase, symbol, or device—the mark—used in business (referred to in the law as commerce) to identify and distinguish one product from another. For example, Jump at the Sun® is a registered trademark for children's fiction and nonfiction books about history, sports, the arts, spirituality, musicians, biography, friendship, family, poetry, and school.

Service Mark: A service mark protects a word, phrase, symbol, or device—again, the mark—used in business to identify and distinguish one service from another. For example, Lightning Source® is a registered service mark for wholesale distributorship services in the field of on-demand printing and electronic media.

Patent: The patent is probably the least used intellectual property in the publishing industry. A patent protects an invention by granting the inventor the right to exclude others from producing or using the inventor's discovery or invention for a specific period of time. Some examples of patentable inventions include the talking book, an e-book reader, a typewriter, and an Internet-based system and method for highlighting search results such as that used by Google. Not all intellectual property lawyers practice patent law because a patent practice requires that attorneys have a science degree and take an additional bar examination; patent attorneys usually have some background in technology or engineering.

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At 5:01 PM, Anonymous Anonymous said...

If I want to produce books and merchandise based upon a single theme, what would be best to cover all my bases. For example, let's say I want to write books about circles. I also want to produce, market, sell arts of circles and circle sculpture.


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