My Little Pony XLVIII: I say Ol' Chap, how about those Equestrians?

[Anarion]

What's the difference? More specifically, how do we use them differently? I'll be honest in that it's not something that's ever come up enough for me to really notice.

Please note that the following is NOT legal advice, it's a theoretical discussion on the law and may not be 100% accurate. If you ever rely on this for anything other than correcting ignorant people on the Internet, you are being really really stupid (mods, please don't ban me, he totally asked first).

The difference is that they're different. Obviously that's a non-answer, but they're different in nearly every way other than the fact that people lump them all under the heading intellectual property because they deal with stuff people own that isn't tangible.

Factual Differences
Trademarks are for names, logos, and short catchphrases. White curly font text that says "Coca-Cola" on a red can is a trademark. So is the name "Coca-Cola." So is their little phrase "live positively" that they've been putting on all the billboards recently.

Copyrights are for expressive works. Books, movies, fine art, modern art, made it with macaroni in 3rd grade art, music (both compositions and recordings), and computer programs (which imo shouldn't be copyrighted, but 120+ countries disagree by treaty). Copyright also applies to sub-parts of a work such as characters and plots. The easiest example is Mickey Mouse. It's not legal to use Mickey Mouse in your own story or art without Disney's permission (other than fair use, which I'll cover in a minute).

The one major area of overlap between copyright and trademark is characters, and looking at the difference is actually fairly informative. So, we'll take Twilight Sparkle because she's best pony. Hasbro claims copyright over Twilight Sparkle and also has a trademark over Twilight Sparkle. The copyright covers the character wholistically. The copyrighted Twilight Sparkle is a purple unicorn with special skill in magic and a cutie mark to match, a studious personality, who possibly suffers from mild OCD, and who is learning lessons about friendship. Trademark, on the other hand, extends only to the character design. The trademark applies to the name "Twilight Sparkle," and to the character design: a purple unicorn with a dark blue mane and tail that have a pink and purple stripe and a tattoo on the flank with overlaid pink and white stars surrounded by 5 other white stars. I don't know, off the top of my head, how much of that you need to copy to infringe either copyright or trademark. It's probably enough to be "substantially similar" but your guess as to what that means is as good as mine.

Legal Differences
Copyright and Trademark don't come with the same set of rights. The big one, which is what annoys me so much when people mess it up, is that you don't have to enforce your copyrights, but you do have to enforce your trademarks. We'll continue sticking with best pony as an example. If Hasbro became aware of an artist making and selling pictures of Twilight Sparkle, both their trademark and copyright are being infringed. Hasbro has the right to sue over both if they want (or ask for takedowns or what have you), but if they don't take action over the copyright, it has no effect on the copyright itself. On the other hand, if they don't take action on the trademark, the trademark itself could be destroyed. Perhaps not by one artist, but one could imagine parading 100 different fan artists to a jury and explaining that no, actually Hasbro doesn't have any exclusive right to the Twilight Sparkle trademark because they let everyone use it. The only reason that fan artists are allowed to exist is that Hasbro, in an official capacity, does not know that any of them exist (and because of fair use). It's also why they had to send that request to White-Dove not to sell her stuff a while back on Deviant-Art because random fans making plushies is totally different than allowing someone to run their own business by stealing your registered trademarks.

There are other legal differences related to what kind of money you can get when you sue someone, but the requirement of protecting your trademarks while being allowed to ignore your copyright is the big one.

Fair Use
I kinda just said I'd talk about this a couple times, didn't I? Except nobody actually knows what is and isn't fair other than comparing it to stuff that has been found to be fair or not. Right now the big one seems to be whether your work is a commentary or parody of the original work, in which case it's fair, or is just trying to profit off the original work, in which case it's not fair. That's not actually the test though (Zz'dtri is incorrect when he makes the blanket statement "parody is protected speech," it would be correct if he said "usually protected"). The test is whether something is a transformative work or not, and the U.S. Supreme Court has held that parodies are transformative, at least in most cases. It also matters how much you take, what kind of work the original is (books better protected than computer programs), and whether what you're doing is hurting the original creator economically.

Copyright and trademark fair use both exist and they're similar. I don't know the differences between them, but they're not always the same.

Underlying value
Lastly, the two systems have totally different reasons for existing, which comes up every once in a while. Trademarks exist to help consumers (you may not feel this way when My Little Pony artists get cease and desist letters). Trademarks help consumers by making sure that when you see a name, logo, or catch phrase, you know it's from the real thing. It helps prevent counterfeiting and ensures high quality products. Trademark law, in theory, shouldn't give a crap about stuff if it doesn't lead to consumer confusion. The law is imperfect, however, so sometimes things that don't lead to consumer confusion end up getting messed with by trademarks anyway.

Copyright law exists to encourage artists. There's a sense that art is really good for society, but it pays badly. Protecting copyrights gives artists more ways to make money and gives a few people a chance to really hit it big (which in turn encourages a lot of starving artists to at least try). We want more people to be able to support themselves making art instead of having to go flip burgers at a restaurant, and that's why there's copyright law. There are times (such as suits against remixers) where I believe copyright law not only fails to encourage art, but actually inhibits it, but that's a symptom of an imperfect system.


Now you know. And knowing is half the battle.