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Copyright and Trademark Law in Pennsylvania

Whether you are an independent creator or a business owner, copyrights and trademarks can have a major impact on your life. It’s important to understand what they do and do not protect, what rights they grant to you as the owner, and what to do if someone infringes on those rights. Whether you’re looking to register for a copyright, protect a trademark, or renew a registration, the attorneys at Cornerstone Law Firm can help. We have experience in dealing with both copyright and trademark law, and we can assist you with applying for a registration and protecting your intellectual property. Call us today for help with your copyrights and trademarks.

Terms to Know

Copyright: A copyright is a legal protection for certain created works that gives the owner exclusive rights to reproduce, distribute, and display the works.

Trademark: A trademark is a logo, symbol, or other mark used to identify businesses, products, or services that can be registered for legal protection and grant the owner exclusive rights.

Common Law Copyright: A common law copyright is a kind of copyright that exists after a work has been created. U.S. common law copyrights apply to any eligible work created on or after January 1, 1978 that has not been registered with the U.S. Copyright Office.

Derivative Work: Derivative work is a type of created work that is based on a pre-existing, copyrighted work. It must be different enough to avoid infringement and often requires permission from the copyright owner of the original work.

DMCA: DMCA stands for Digital Millennium Copyright Act and it was enacted in 1988. It includes multiple provisions for digital copyrights including anti-circumvention, safe harbor provisions, and online service provider liability.

Fair Use: Fair use is a rule under U.S. copyright law that allows for some use of copyrighted works without obtaining permission or paying royalties to the copyright owner. It is often (but not always) allowed in cases of education, research, news, commentary, and parody.

Intellectual Property: Intellectual property is any created intangible asset including inventions, processes, logos, books, music, software, artwork, and trade secrets.

Parody: A parody is a type of commentary, satire, or criticism that uses parts of an existing work to make its statement. It is generally protected as fair use under U.S. copyright law.

Public Domain: The public domain is a collection of creative works that are not protected by copyright and are free to copy, use, or distribute without permission or payment to the original owner. U.S. works published before 1926 are in the public domain. Anything newer may be protected by a copyright.

About Copyrights

Copyrights are an important legal protection for writers, musicians, artists, inventors, architects, and anyone else who wants to protect their intellectual property. Under United States copyright law, the following types of work are eligible for copyright protection:

Books
Articles
Poetry
Drawings
Paintings
Sculptures
Photographs
Plays & screenplays
Music & lyrics
Recorded music
Recorded spoken word
Movies & videos
Architectural designs
Certain types of software
And more

As soon as you create a work in a fixed or tangible form (write the book, record the music, take the photo, etc.), you are the owner of that copyright. You are not technically required to register your copyright but doing so can benefit you in the long run. This is especially true in cases where you want to publish or otherwise distribute your work. By formally registering for a copyright, you can file a lawsuit and seek damages for copyright infringement.

There are cases where the creator of the original work may not hold the copyright for the work. Organizations, businesses, and other individuals can hold the copyright if the creator is an employee or has been hired to create the work in question. This is covered under a provision for “works made for hire” in U.S. copyright law.

It’s also important to note that copyrights have limitations on what they protect. There are some forms of intellectual property that can be covered by trademarks or patents instead of copyrights. Copyrights only apply to works with a fixed or tangible form. Examples of things that cannot be covered by copyright include:

Ideas
Facts
Concepts
Discoveries
Titles or names
Slogans
Works without original authorship (like phone books, calendars, rulers, etc.)
Works already in the public domain

How do I register for a copyright?

To register, you must apply with the U.S. Copyright Office. You can register online or by mail. You will need to provide a title, pay a registration fee, and provide a copy of the work (either physical or digital). You can file under a pen name or stage name if you’d prefer. It’s not required that you publish before obtaining a copyright, and generally, obtaining a copyright first may be wiser. Once you’ve submitted your application, the U.S. Copyright Office will process it and get back to you. Processing times vary depending on the number of other applications that have been submitted before yours.

You can make some changes to your original work once you have received a copyright for it. Substantial changes will be viewed as a derivative work, and you will need to register a new copyright.

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How long does a copyright last?

A copyright lasts for the creator or owner’s lifetime, plus an additional 70 years. During that additional 70 years, the ownership will pass through inheritance to either a spouse, child, or other next-of-kin. After that period has ended, copyright renewals can be requested, or the work can move into public domain.

What does a copyright notice look like?

Copyright notices should include either the word “copyright” or the copyright symbol ©. They will also include the date of publication (can be a range of dates if applicable) and the owner of the copyright. An example of a copyright notice is: © 2023 Cornerstone Law Firm, LLC

You can also add a rights reserved line. This may look like “all rights reserved,” “some rights reserved,” or “no rights reserved.” “All rights reserved” would indicate the same thing the copyright itself indicates: that no one may use your work without your permission. “No rights reserved,” on the other hand, indicates that anyone may use your work. This can be useful if you want people to use your work for education or social good. You are not required to add a rights reserved line, but they can help to reinforce your ownership.

If you are looking to apply for either a copyright or a trademark, call Cornerstone Law Firm for help. Our attorneys can keep you informed about your intellectual property rights and assist you with the application process. Contact us today for help with registering your I.P.

About Trademarks

As mentioned above, trademarks are another form of protection you can use for intellectual property. Trademarks are typically held by businesses or organizations. They serve as protection for identifying brand elements like logos, slogans, jingles, and more.

Trademarks differ from copyrights in how they are obtained. While copyrights can apply to a broad range of work, trademarks must meet certain requirements. One of the biggest determining factors in whether or not your I.P. can be trademarked is if it is distinct. The U.S. Patent and Trademark Office (USPTO) uses degrees of distinctiveness to determine if your mark can be trademarked. They are:

Fanciful—A trademark is considered fanciful if it uses a made up word that only has meaning in regard to the products or services it represents.
Arbitrary—A trademark is considered arbitrary if it uses a word that has no association to the products or services it represents.
Suggestive—A trademark is considered suggestive if it uses a word or phrase that alludes to the quality of the products or services it represents.
Descriptive—A trademark is considered descriptive if it directly describes some aspect of your products or services. Descriptive trademarks are often denied federal registration.
Generic—A trademark is considered generic if it simply uses a common word for the products or services. It cannot be trademarked if it is generic.

How do I register for a trademark?

Because trademarks use more restrictive criteria, the application process is a bit more involved. It is a good idea to hire an experienced trademark attorney to review your trademark before you begin applying. An attorney can help you determine whether your trademark is eligible for registration, or if it falls in either the Descriptive or Generic categories.

When you are ready to apply, you will fill out an application with the USPTO. You can apply to register a trademark that is already in commercial use or one that you plan on using in the future. You must include contact information for both you as an individual and the entity that will own the trademark. You must also include an image or description of the mark, a list of the products or services it will represent, and an example of your mark in use. There is a registration fee as well.

How long does a trademark last?

In order to maintain your trademark, you must use it for commerce and file certain renewal paperwork at certain intervals. Those intervals are: between the 5^th and 6^th year after your registration, between the 9^th and 10^th year, and then every 10 years after that. You can file renewals early. You can also apply for a grace period to file them later, but that may incur additional fees. If you have added or removed any products or services under that trademark, you will need to update your registration with this information.

What does a trademark look like?

Trademarks operate similarly to copyrights in that you don’t have to formally register for one to own it. If you are using an unregistered trademark, you can include a TM on your products or an SM on your services. After you have completed registration, you can use the registration symbol ®.

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About Infringement

Infringement essentially refers to using a copyrighted or trademarked work without obtaining proper permission. Although there are some differences between copyright infringement and trademark infringement, both carry legal consequences.

What Happens When Someone Infringes on Your Rights

If you are the owner of a copyright or trademark and you believe someone has infringed on your rights, there are steps you can take. You can start by collecting evidence that the offending party has used your work without your permission. You can then contact the infringer and ask them to stop. If simple contact is not enough, contact an attorney and send a cease-and-desist letter. If the infringement continues beyond that, you can file a lawsuit and seek any damages caused by the infringement. In the case of trademark infringement, you may also want to contact the USPTO and work together to stop it.

What Happens When You are Accused of Infringing on Someone Else’s Rights

With the structure of the internet, it’s easier than ever to accidentally infringe on someone else’s copyright or trademark. If you find yourself in this situation, don’t panic. The easiest solution is to stop using the work immediately. If the other party is willing to work things out with you, sometimes an apology and an explanation are all that’s needed. In cases where the other party decides to seek legal action against you, contact an experienced attorney.

You have a right to protect your intellectual property from unauthorized use. If you are looking to register for a trademark or copyright, contact the attorneys at Cornerstone Law Firm. We will work with you to help you apply and ensure you know the rights granted to you once you’ve received your copyright or trademark.

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