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Copyrights and Trademarks and Patents! Oh My!

I recently heard a member of an up and coming band discussing the band’s soon-to-be-released second album, … cd, … simultaneous release of approximately twelve musical mp3’s – until I pass from this earth, could we all please just refer to such a thing as an “album?”  Thanks.

To his credit, this guy was fairly savvy as to the need to protect the band’s audio and graphic/album art intellectual property. But when he mentioned that they planned to “patent” their new songs, it became obvious how easily confusing the intellectual property protection lingo can be.  So I thought the most basic of primers might be of some use.

What is the difference between a patent, a trademark, and a copyright? Quite simply, “the thing.” What “thing” you are trying to protect is what determines whether you will seek a “patent,” a “trademark,” or a “copyright.”


The U.S. Patent and Trademark Office provides the full and complete definitions of what a patent is, and what a trademark is, and even links to the sections of the United States Code that define these terms – just in case you need a do it yourself lobotomy.

But at its most basic, think of a patent as a new machine or device you’ve invented.  Some, or all, of the parts of the machine may be subject to one or several patents.

And know that patent protection can encompass less “physical” inventions or discoveries as well, including – but not limited to – new and useful processes, and new and original ornamental designs.  And patent protection may also extend to “anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”

“Asexually reproduces?” That just sounds wrong.

And what patent protection does is allow the patent holder to EXCLUDE others from making, using, offering for sale, selling or importing the patented invention for a term of 20 years. So a patent is not the right to make something, it is the right to exclude others from making the same thing. Competitors may “invent around” your invention – make something similar that does the same thing, but they can’t copy or sell YOUR thing without your permission.


Think of a “trademark,” at its most basic, as a logo;  a stylized tag of some sort – a word, name, symbol, or even a device, that identifies the source.

Just as the purpose of any logo is to identify the source, the purpose of a trademark is to distinguish your goods – you as the source – from goods provided by others.

Registering a trademark provides national notice that you are using your mark – your logo or other identifying item – thereby allowing you to prevent others from using a confusingly similar mark.

While you may be able to use your mark in your geographic area without having registered it, unless you have registered it, someone else may be able to use the same or similar mark in another part of the Country; and you might be unable to stop them.


Copyright, at its most basic, is protection provided to authors or creators of original creative works – “original works of authorship” as termed by the U.S. Copyright Office.

The work can be literary, dramatic, musical, artistic, and more – creative work ranging from books, music and film, architectural drawings, photographs, paintings, sketches, to choreographed dance moves.

And while your “original works of authorship” are protected from unauthorized use even if you do not register them with the Copyright Office, registration makes proof of your authorship easier, and conveys very significant and powerful rights and statutory damages.

The Band & the Album

So the new album by The Up and Comers (my fiction, not their real name), would generally be protected by (1) registering the album and music videos with the U.S. Copyright Office, to protect the lyrics, music and performances from unauthorized use, and (2) register the band’s unique trademark properties – the name, symbols, etc., which are associated with the band as the source of their own music.

No patent would be involved – unless perhaps they invented a new device to record their music, or a new method for distribution of their music, or a new music format – a song recorded on a human hair, for example – at which point we would presumably have to repurchase our music library in yet another format. Perhaps the new term for “album” would become a “lock” – of hair. From a hair band.

No! “Album” – it’s an “album.” It will forever be “album.” We agreed on that.

*Note – this summary is INCREDIBLY oversimplified. Take if for the “shorthand” that it is.