A new brand creates two kinds of assets at once. There is the identity: the name, the logo, maybe a tagline. And there is the work: website copy, product photos, illustrations, packaging art. US law protects them with two different systems, run by two different offices, with different rules for what qualifies, who owns it, and how long it lasts.
Founders tend to blur them, usually by assuming the name is "copyrighted" or that paying a designer settles who owns the logo. Neither is true. This guide goes asset by asset.
Two laws, two jobs #
Copyright protects creative expression. It "subsists… in original works of authorship fixed in any tangible medium of expression," and it never extends to "any idea, procedure, process, system, method of operation, concept, principle, or discovery" (17 U.S.C. §102). It is administered by the U.S. Copyright Office.
Trademark protects source identifiers. Federal law defines a trademark as "any word, name, symbol, or device, or any combination thereof" used "to identify and distinguish" your goods and "to indicate the source of the goods" (15 U.S.C. §1127). Federal registration is handled by the USPTO.
The short version: copyright asks whether something is original creative work; trademark asks whether customers use it to tell whose product they are buying.
Your brand name: trademark only #
Copyright does not cover names. The Copyright Office's regulations list "words and short phrases such as names, titles, and slogans" among works not subject to copyright (37 C.F.R. §202.1(a)). Its Circular 33 explains that they "contain an insufficient amount of authorship," names "the name of a business or organization" and "the name of a product or service" specifically, and adds that these "may be protectable under federal or state trademark laws" (U.S. Copyright Office, Circular 33).
So protecting a name is trademark work: searching before you adopt it and using it in commerce, with federal registration at the USPTO adding further rights. How to Check If a Brand Name Is Trademarked in the US covers the search. The same goes for a tagline.
Your logo: often both, unevenly #
As a trademark, a logo is protected for what it does: identify your goods or services. How artistic it is doesn't matter. What matters is whether it is distinctive and whether it conflicts with an earlier mark.
As artwork, a logo can also be registered for copyright, but the bar is real. The Copyright Office's manual says a work used as a logo "may be registered if it satisfies 'the requisite qualifications for copyright,'" and that the Office typically refuses logos that consist only of wording, "mere scripting or lettering," or "mere use of different fonts or colors, frames, or borders" (Compendium (Third), §914.1). It also will not register "a work that merely consists of common geometric shapes" unless the arrangement as a whole is sufficiently creative (same chapter, §906.1).
In practice, a wordmark set in a typeface has no copyright in its lettering, but it may qualify for trademark protection if it meets the requirements for a mark; a detailed illustrated emblem can qualify for both. Fonts follow the same logic: "Copyright law does not protect typeface or mere variations of typographical ornamentation or lettering" (Circular 33). If your logo was made with AI tools, the copyright side has its own rules; see Who Owns an AI-Generated Logo? US Copyright vs Trademark.
Your content and product artwork: copyright, with a registration catch #
Website copy, product photography, illustrations, packaging art, and designs printed on products are classic copyright subject matter. Protection begins when the work is fixed, and a copyright notice is optional "for works published on or after March 1, 1989" (Circular 3).
The catch is enforcement. For a US work, "no civil action for infringement… shall be instituted until preregistration or registration of the copyright claim has been made," or the Office has refused registration (17 U.S.C. §411(a)). In 2019 the Supreme Court held that registration occurs "when the Copyright Office registers a copyright," not when you file the application (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (2019)).
Timing also limits what you can recover. Register before infringement begins where possible. For infringement that begins after first publication, registration "within three months after the first publication" can preserve eligibility for statutory damages and attorney's fees (17 U.S.C. §412). Eligibility is not a guarantee that a court will award them. The Copyright Office's fees are $45 for an eligible Single Application (one author who is also the claimant, one work, not made for hire) and $65 for a Standard Application (Copyright Office fees).
Who owns the work you paid for #
Copyright "vests initially in the author or authors of the work" (17 U.S.C. §201(a)). The exception is a work made for hire, which covers "a work prepared by an employee within the scope of his or her employment" and a narrow list of specially commissioned works (17 U.S.C. §101). For commissioned work the requirements are strict: the work must fall in one of the listed categories and there must be a written agreement, signed by both parties, that expressly says it is a work made for hire. "If a work fails to satisfy any of these requirements, it is not a work made for hire" (Circular 30).
A logo from a freelance designer usually doesn't fit those categories. The way to own it is a transfer, and "a transfer of copyright ownership… is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed" (17 U.S.C. §204(a)). Payment alone does not transfer copyright; what matters is a signed writing that transfers the rights. When you agree the assignment, spell out what it covers: the final artwork, the source files, any drafts you want, and any stock or third-party elements the designer doesn't own.
How long each lasts, and the symbols #
A copyright has a fixed term: generally "the life of the author and 70 years after the author's death," or, for a work made for hire, "95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first" (17 U.S.C. §302).
A trademark registration has no fixed end. The USPTO says it "can last forever, so long as you continue to use your trademark in commerce" (USPTO), provided you file a declaration of use between the fifth and sixth anniversaries and renew every ten years (USPTO: keeping your registration alive).
On symbols: the © notice is optional for modern works, as above. The ® symbol is different: under USPTO practice it "may not be used with marks that are not actually registered," and "even if an application is pending, the registration symbol may not be used until the mark is registered" (TMEP §906). Before registration, use TM.
When copyright ends but the brand doesn't #
Because the two systems protect different things, one can end while the other continues. The Copyright Office's own example is Mickey Mouse. In the United States, works published in 1928 entered the public domain on January 1, 2024, and the Office wrote that the entire 1928 film Steamboat Willie "is no longer protected by copyright." It also noted that "copyright never protected the names 'Mickey Mouse' or 'Minnie Mouse,'" and that a work in the public domain may still be subject to other protections (U.S. Copyright Office blog, January 2024).
For a founder, the lesson runs both ways. Your own brand can outlive any copyright in its artwork, as long as you keep using and maintaining the mark. And when the US copyright in one work featuring someone else's character expires, the expiry covers that work; it does not make the owner's name or brand free to use on your products.
Borrowing from other people's work #
Basing a design on someone else's artwork or brand raises both systems at once. On the copyright side, the Supreme Court held in 2023 that "if an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying" (Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (2023)). That holding concerned the first fair-use factor for a specific use; fair use still turns on all of the factors. On the trademark side, the question is whether buyers would be confused about who is behind your product, which Trademark Likelihood of Confusion: Factors and Examples explains.
Side by side #
| Copyright | Trademark | |
|---|---|---|
| Protects | Original creative expression | Words, names, symbols, and devices that identify the source of goods or services |
| Brand name or slogan | No | Yes, if distinctive and used in commerce |
| Logo | Only if the artwork is creative enough | Yes, if distinctive and used as a brand |
| Website copy, photos, artwork | Yes | Not as such |
| Starts | When the work is fixed | With use in commerce; federal registration adds rights |
| Office and fee | Copyright Office: $45 or $65 per application | USPTO: $350 per class base fee (USPTO) |
| Lasts | Fixed term (life + 70, or 95/120 years for works made for hire) | As long as you use the mark and maintain the registration |
| Before you sue | Generally, registration or a refusal is required for US works | Registration not required; it strengthens your position |
Frequently Asked Questions #
Can I copyright my business name? #
No. Names, titles, and slogans are not subject to copyright (37 C.F.R. §202.1(a)). Protect a business or product name as a trademark.
Can my logo be protected by both copyright and trademark? #
Yes, if the artwork is creative enough for copyright and the logo works as a brand for trademark purposes. A logo that is only wording, lettering, or simple shapes usually won't get copyright, though it may still qualify for trademark protection if it is distinctive and used as a brand (Compendium §914.1).
Do I need to register my copyright? #
Not to have it; protection exists once the work is fixed. But for a US work you need registration (or a refusal) before you can sue, and for infringement that begins after publication, registering within three months of publication can preserve eligibility for statutory damages and attorney's fees (§411(a); §412).
My designer made my logo. Do I own it? #
Not automatically. Unless it qualifies as a work made for hire, the designer owns the copyright until they sign a written transfer to you (17 U.S.C. §204(a); Circular 30). Your trademark rights come from using the logo as your brand, but you still want the copyright assigned so the designer can't license the artwork to someone else.
When can I use the ® symbol? #
Only after the USPTO registers the mark, and only for the goods and services in the registration. While the application is pending, use TM (TMEP §906).
If a character's copyright has expired, can I put it on my products? #
In the US, the expired work itself is in the public domain, but that covers that work only and does not settle everything. The Copyright Office notes that public-domain works may still be subject to other protections, and that copyright never covered names like "Mickey Mouse" in the first place (Copyright Office blog). Check the trademark side before you use a character's name or look on goods.
Related reading #
- Who Owns an AI-Generated Logo? US Copyright vs Trademark, for logos made with AI tools.
- How to Check If a Brand Name Is Trademarked in the US, the trademark search for your name.
- Brand Launch Trademark Checklist: 12 Pre-Launch Checks, including design ownership.
This is general information, not legal advice. For a question about a specific work, contract, or mark, talk to a qualified copyright or trademark attorney.
External resources #
- U.S. Copyright Office, Circular 33, works not protected by copyright.
- U.S. Copyright Office, Circular 30, works made for hire.
- U.S. Copyright Office fees.
- USPTO: Why register your trademark.
