Is copyright better than registered trademarks?
Registered trademarks versus copyright
Trade mark registration versus copyright.
The Da Vinci Code case - copyright weaknesses
Dan Brown, the author of the widely read book (over 30 million copies reputedly sold), the Da Vinci Code, was represented in the High Court in London in 2006 to defend an accusation that his book breached copyrights held by other writers, and used material from their work in the book. In 1982, Michael Baigent and Richard Leigh had their book called "The Holy Blood and The Holy Grail" published by Random House, which also published the Da Vinci Code. The accusation was that the Da Vinci Code took certain themes from The Holy Blood and The Holy Grail, and that this represented breach of copyright (Baigent & Leigh v The Random House Group Ltd., [2006] EWHC 719 (Ch), judge Peter Smith). The accusers lost their case.
Is copyright strong enough protection?
This brings into question as to whether copyright is a sufficiently strong form of protection for intellectual property. Indeed, a key question is whether stronger protection for intellectual property is embodied in trademark registration compared with copyright. Some of the issues that arose from the court case included: -
- does copyright protect ideas?
- does copyright protect facts?
- how can you prove breach of copyright?
- how can an author use historical events in a book, if someone else has written about them?
- does copyright protect themes?
The UK's High Court judgment in the Da Vinci code case outlined the important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not
- prevent use of the information,
- thoughts or
- emotions expressed in the copyright work.
- copyright does not prevent another person from coincidentally creating a similar work by his own independent efforts.
- copyright is not an intellectual property monopoly in the same sense as a registered trademark, patent or registered design.
- There is no infringement of copyright in the absence of a direct or indirect causal link between the copyright work and the alleged copy.
(reference judge Mummery LJ, Sawkins (paragraph 29) case, Sawkins v Hyperion Records Ltd [2005] 1WLR 3281).
Copyright versus registered trademarks
- copyright does not protect some aspects of intellectual property
Based on the Da Vinci Code court judgment, copyright is not appropriate for protecting ideas, facts or themes. The rights of authors to write about historical events was preserved by the judgment.
The religious theme about the lineage of Christ was not protected as it was contained in the book, and was a valid theme for other authors to write about.
This makes copyright somewhat less valuable as a form of protection for intellectual property. Traditionally new ideas are protected through patents, although certain matters are not patentable - for example recipes, or ideas that already exist or ideas that form part of the state of the art. This leads to the role of trademarks in maintaining rights in intellectual property.
So protection of your work may be more difficult to obtain than might appear at first, especially via copyright.
So it may be very worthwhile looking at using trademark registration as a suitable additional tool for protection of your rights. Registered trademarks have been very successful in protecting property rights. Use registered trademarks that can be embodied into the following:
- concepts, such as cartoon characters.
- brand names, such as a name for a drink or product.
- titles, such as a book or film title.
- character film rights and merchandising.
- themes, such as a devised theme, like 007.
- themes or ideas such as restaurant chains.
- concepts, such as contained in beauty products.
Applying to register a trademark can carry significant rights, once registration has been obtained.
The registered trademark allows for several ways to exploit concepts, brand names, titles, film characters and themes. The result of the Da Vinci Code legal case should make authors, publishers, film producers and media businesses look at the power of trademark registration to secure strong rights.
In certain cases, it would now appear that the case for registering a trademark has been strengthened by the decision in the Da Vinci Code case.
To see more about registering trademarks for films, television programmes or cartoon characters, go to the character merchandising and trademarks page.
To see a full range of our trademark registration services, or how to register a trademark, please visit the trademarks SITE MAP page.
... registered trademarks can last forever
Once you get your trademark registered, you can use it forever. However, you must use it in trade on a regular basis. The trademark registration can be renewed every 10 years.