How do you obtain a copyright or a trademark on your logo? What is a copyright or a trademark, and what’s the difference? If you’ve ever owned a business or gone through a logo design process with a designer, these are likely things you’ve thought about. We’re certainly not lawyers, and nothing in this article is intended to be taken as legal advice. However, we have been able to gather some insight on these issues over time, and we’d like to share that with you here—as well as give you some resources so you can better understand and protect your brand assets.
The key issue at stake when it comes to logos or any other brand asset is intellectual property, and whoever owns that property holds the copyright to it. Things like graphic designs, art, music, slogans, stories, photographs, poems, product designs, business ideas, etc. are all things that fall under the category of intellectual property.
You are not obligated to do anything in order to legally protect your work with a copyright. A copyright of protection exists by virtue of its existence.
Immediately and by default, intellectual property is the legal possession of the person who created it; i.e., it is ‘copyrighted.’ Granting, of course, that it’s an original creation and not something that was ripped off from someone else. For example, if you do a drawing of a brown bear that isn’t a tracing or copy of someone else’s brown bear, that drawing is immediately copyrighted as soon as you create it. That’s it; nothing more you need to do. You created it, and you alone have the right to reproduce, use, and distribute your brown bear drawing.
So let’s say for example that I come along the next day and re-draw your brown bear to put on a hand-made birthday card for my daughter. Technically that would be a violation copyright law you could legally take me to court for that. Now, if I were simply putting the brown bear knockoff on my daughter’s birthday card you probably wouldn’t mind (then again, maybe you would; you’d certainly have the legal right to mind if you chose). But if I took it and put it on a t-shirt and sold a million shirts, or if I sold it to a startup as a logo design, or if I put it on my website and said it was my original work, then litigation might be something that you’d consider.
The point though is that you are not obligated to do anything in order to legally protect your work with a copyright. It was copyrighted as soon as you created it. The difficulty with that kind of de facto copyright, however, is that creation of work can be difficult to prove, because at that point it’s essentially your word against the hijacker’s. ‘I created it first!’ ‘No, I did!’ That’s where registering a copyright comes in.
Official and Unofficial Ways to Copyright the Work
Registering a copyright on a piece of intellectual property is an official, legal recognition of copyright on your work that establishes ownership once for all. You can find basic facts about registering copyrights on the United States Copyright Office’s FAQ page.
As a practical suggestion, someone once told me—way back when when I was just a teenager doing drawings all the time—that one of the easiest ways to ensure ownership of your intellectual property is to make a good ol’ fashioned hard copy of it, mail it to yourself, and never open the envelope. There is of course nothing official about that, but it is a simple way of definitively saying ‘I created this on such-and-such a date.’ That way, even if you don’t get a registered copyright, you can have some measure legal firepower when someone recognizes your genius and sells a million shirts with your brown bear on it.
Who Owns the Copyright on Your Logo, you or the Designer?
In my experience this is an incredibly important detail that is simply forgotten about in most logo design processes. And that’s unfortunate because responsibility over that detail lies with the designer.
By default, whoever creates the intellectual property holds the copyright to it. So unless your logo designer explicitly states somewhere in your contractual agreement that you own the final design, he or she owns it, and he or she alone can use and reproduce it. And, in fact, as stone-age as it seems, it has actually been fairly common in the world of design to retain the copyright over commissioned work which they produced for a client.
Speaking personally, I’ve never been a fan of that practice. I mean, a business owner who has no legal right to use his own logo, which he paid for with his own money? That’s not right.
For our part, from logos to websites, our clients always own the work which we produce for them. (We only ask that we be able to use in our portfolio—which is fair, I think.) Along those same lines, clients should always make it a priority to determine up front who owns the work once it’s completed and paid for. It sounds like common sense enough, but ambiguity happens here more often than you’d think.
Clients should always make it a priority to determine up front who owns the work once it’s completed and paid for. It sounds like common sense enough, but ambiguity happens here more often than you’d think.
A trademark, on the other hand, specifically involves assets (logos, slogans, designs, music, etc.) that distinguish brands, businesses, products, etc. from others. In other words, a copyright applies to your brown bear drawing as long is it remains a personal work, but a trademark comes into play once you make it your company logo, or put it on a million shirts. At that point it has become an asset that distinguishes your brand or product from others.
(On a side note, the USPTO actually distinguishes between TM, which pertains to goods, and SM, which pertains to services. They recommend using each accordingly.)
Like copyrights, there is no legal action required if you want to trademark your logo or protect your right to use it as such. A trademark simply states that you believe your logo to be an asset that is unique to, and uniquely identifies, your brand. However a registered trademark—the ®; that is, the little “R” in a circle next to a logo, tagline, etc.—is a different story. A registered trademark is an official recognition by the United States Patent and Trademark Office that your mark is in fact unique and distinct to your business and can be protected as such.
Because of the added complexities of trademarks, the USPTO recommends that you hire a trademark attorney to assist you in the process of getting your mark (your logo, etc.) registered.
Additional & Local Resources
For official information on trademarks, copyrights, uses, and registering, see the USPTO’s Basic Facts pamphlet.
The American Institute of Graphic Arts (AIGA) has tons of helpful resources on trademarks and copyrights that specifically apply to graphic design (e.g., things like logos). Along those same lines, you can also see this great series of articles and resources by well-known logo designer Justin Cass.
For those here in San Luis Obispo County interested in finding out more about copyrights or trademarks, Tardiff & Saldo is a Central Coast firm located in Avila Beach that practices in the area of intellectual property law.
Not long after this was posted, the folks at BookSlide reached out to us to let us know that they found our article useful (which was great) and to notify us of another great resource they stumbled across by George Washing University. You can find that here.