August 27, 2013
Too often a journalist for a well-known publication will publish an article that confuses copyright protection with trademark protection or copyright infringement with trademark infringement. This misnomer and incorrect application of law oftentimes confuses the general public and inaccurately communicates an otherwise newsworthy story.
For example, a band with a unique name composes an original song. In this example, generally, the original song may be protected under copyright laws as the song is a fixed expression of an idea that the band reduced down to writing, while the unique name of the band may be protected under trademark or unfair competition laws.
For example, a third party, without authorization, copies a band’s exact song and sells it on CDs over the internet. Further, the same party who is selling unauthorized copies of the band’s song is doing so under the same name as the band despite having no authorization to use the name. In this example, the copyright holder, which may be the band or record label, may seek relief against the unauthorized party selling the CDs under a claim of copyright infringement. Further, the trademark holder of the band name, which is usually the band itself, or the record label on behalf of the band, may seek relief against the unauthorized party using the band’s name to sell the CDs under a claim of trademark infringement or unfair competition. There are additional criteria that oftentimes need to be met to have a valid copyright or trademark as well as specific requisites which must be met to bring a claim for copyright or trademark infringement. It is important to consult a copyright lawyer or trademark lawyer to assist you in determining whether you have a valid copyright or trademark and whether your rights in either have been violated.