How Close Can a Logo Be & Not Be a Copyright Infringement?

By Tom Streissguth

Federal copyright law protects original works of art and design used commercially, such as logos. If the copyright is registered with the U.S. Copyright Office, anyone who violates the copyright by using it without permission can be subject to a lawsuit, as well as fines and damages. There are several conditions that determine whether a new but similar design violates a copyrighted logo.

Logos and Copyright

Logos are designs that identify a brand, a company or a product to the public. A company or an individual can register a logo with the U.S. Copyright Office and protect it from use by someone else. A name alone can't be copyrighted, nor can a word, phrase or idea. Copyright law requires that the logo to show "authorship," meaning original elements that indicate a minimal level of creativity on the part of the designer. A trademark can also protect your logo.

Public Domain Elements

If you create a logo that is similar to another design, you may be violating the owner's copyright. If another individual or business has registered the copyright and brings a lawsuit, a judge would base his decision on "substantial similarity" and the "observer test." These are standards, used by many courts in copyright cases, determine whether an ordinary observer would overlook any minor differences between the works and regard them as the same. Using elements of the original logo that are unoriginal or not able to be copyrighted -- such as letters, numbers, names, words, typefaces, or familiar shapes like crosses, shields, and pyramids -- would not, by itself, represent a violation of copyright.

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Authorship and Logos

If you copy an original arrangement of public domain elements, you might also be crossing the copyright-violation line. The court can determine that the arrangement is unique and displays "authorship" by the original designer. Simply replacing the text in a copyrighted design with words or abbreviations of your own -- and duplicating the designed elements and colors -- also represents a violation of copyright. Professional sports teams, fast-food chains and coffee shop franchises have all brought suit to protect their logos from would-be copiers who use the designs to promote their own products.

Judgments and Damages

Federal law provides for statutory damages up to $150,000 for each infringement of a copyright. A copyright violation does not necessarily mean an award to the plaintiff at the end of a lawsuit, however. If the violator can show that he has not profited from the copying, or that he did not willfully violate copyright, then the court won't award statutory damages. However, the court can enforce copyright law with a protective order, impound business records and any materials that use the logo, as well as award actual damages that the plaintiff can prove he suffered through the violation.

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References

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