At an intense moment in Spider-Man, tough tabloid editor J. Jonah Jameson grabs the phone and barks the order, "Call the Patent Office and get me a copyright on 'Green Goblin.' I want a quarter anytime anybody says that!" Although a few seconds later Jameson demonstrates that he knows the difference between slander and libel, he clearly doesn't know a copyright from a trademark.
Jameson's would-be comic comment evokes only a mirthless laugh from intellectual property attorneys. In a world in which intellectual property has become increasingly more important, sparked especially by the crackling debate over copyright and trademark protection on the Internet, it serves as a reminder of how even the most basic understanding of intellectual property rights still eludes most people.
Ironically, that includes writers: not just fictitious tabloid editors but real-life people who write movies and newspapers—people for whom words are a livelihood, and whose careers would seem to depend upon an understanding of terms like "copyright" and "trademark." Not a week goes by without a news story in which the words and concepts "copyright" and "trademark" get hopelessly confused.
It's time for laypeople—writers and businesspeople alike—to get a basic idea of what these terms mean. Not in all their legalistic complexity, just in common everyday terms. For starters, let's parse out Mr. Jameson's order, and see just how many common misunderstandings about intellectual property are reflected in his two-sentence speech.
"Call the Patent Office …" That would be the U.S. Patent and Trademark Office, which has two primary functions: to issue patents and to register trademarks. A patent is the exclusive right to make and use an original invention or process for a limited period of time. A trademark is a word, phrase, or symbol used to identify a particular product or service in commerce. OK so far?
"… get me a copyright on 'Green Goblin.'" Now we run into problems—six of them, to be exact, in this one phrase.
First, calling the Patent Office doesn't "get" you anything. You have to file an application if you want to obtain either a patent or a trademark registration.
Second, you don't "get" a copyright by calling anybody. You get a copyright by creating an original work and fixing it in a tangible medium. Now don't worry about that language; it just means that you've recorded the work somehow. You wrote a poem or an article on paper or saved it to a disk drive; you recorded a song on audiotape or CD; you recorded a play or made a movie on videotape; you took a photograph on film or disk; you painted a picture on canvas—in other words, it's your original creation and it's been set down in some physical form.
Third, you don't "get" a copyright by calling the Patent Office. If you already have a copyright (because you created an original work and fixed it in a tangible medium), you want to register that copyright for greater protection. To do that you need to contact the US Copyright Office, a division of the Library of Congress that has nothing to do with—and is in a completely different branch of the government from—the Patent and Trademark Office.
Fourth, "Green Goblin" is a two-word phrase and as such may not be protected by copyright at all, so Jameson can't "get a copyright on" that phrase in the first place. Titles and short phrases are not protectable as copyrighted works. They might be protectable as trademarks, however, if they are used in commerce in connection with the promotion and sale of goods and services. (To understand what kind of works may enjoy copyright, we thought of a poem, an article, a song, a play, a movie, a photograph, a painting. To understand what a trademark is, think of brands and brand names. COCA-COLA. The Golden Arches. STARBUCKS. The MGM Lion's Roar. MICROSOFT. BARBIE. The Nike Swoosh. Those are all trademarks.)
Fifth, even if Jameson realizes that what he wants is a trademark, not a copyright, he still won't "get" a trademark by calling the Patent (and Trademark) Office. You get a trademark by making it up, adopting it, and using it in commerce (after first checking to make sure no one else is already using the same mark for the same kind of business). What you "get" from the Patent and Trademark Office is not a trademark but a federal registration of your trademark. This gives you considerable protection, including the right to be the exclusive user of that trademark throughout the United States in connection with the specific goods and services with which the mark is used. (No, not in connection with any goods or services-just those with which you use the mark. That's why one company can own the registered trademark UNITED for an airline, and another company can own the same mark for a moving van line.)
Sixth, Jameson still isn't entitled to register the trademark GREEN GOBLIN unless he can show that he is using the term in connection with goods or services delivered in commerce. He isn't. He has coined the term GREEN GOBLIN to describe, in his newspaper, a strange creature that is wreaking havoc over the city. But he's not marketing any goods or services under the term, so he's not entitled to register it as a trademark. In fact, if anyone is entitled to register the GREEN GOBLIN trademark, it's the Green Goblin himself, since he's the only one who's providing services under that mark—although they are arguably "services" that nobody except Norman Osborn really wants.
"I want a quarter anytime anybody says that!" But even if Jameson were entitled to a trademark registration for GREEN GOBLIN, he still couldn't claim a quarter every time anyone used the phrase. Trademark protection does not entitle the owner to collect money "every time" anyone else utters the phrase. Most utterances of the trademarks of others are legitimate descriptive references to the products, the services, or their provider. Only uses of the trademark in connection with the promotion or sale of other products or services may be stopped by the trademark owner—usually if such uses are likely to confuse consumers as to whether the marks refer to the owner's products or someone else's.
When Jameson talked about wanting his quarter, he was thinking of a system of licensing. Owners of intellectual property—patents, trademarks, or copyrights—are entitled to keep others from using their protected work if those uses constitute infringement. But they may also give permission for such uses. That permission is called a license. It might be free, but more commonly it will be accompanied by a fee-Jameson's "quarter."
Of course, Jameson gets his quarters only after he negotiates and carefully sets terms and standards for license agreements with specific other parties, called licensees. He cannot go around town demanding payment from everyone who uses the phrase. Most of those uses are probably fair anyway—but understanding when an unauthorized use of someone else's trademark or copyright is "fair" and doesn't require a license is another story, and for that you'll have to wait for the sequel.
Robert C. Cumbow counsels clients on intellectual property, advertising, and Internet issues. He focuses on trademark selection and protection, trademark and copyright dispute resolution, and making sure clients' Web sites are legally protected and comply with advertising and privacy laws. For more information, contact Bob at 206.340-9619 or email rcumbow@grahamdunn.com.
This information has been prepared by the firm as a service to our clients. As it is a general guide we recomend that you seek professional advice before taking action.No liability can be accepted by the firm for any action taken as a result of this information.