Nonprofits spend years building recognition around their names, programs, educational materials, fundraising campaigns, and other creative work. Yet intellectual property is often overlooked until another organization begins using something that looks or sounds surprisingly familiar.
Two of the most important forms of intellectual property protection for nonprofits are trademarks and copyrights. Although the terms are sometimes used interchangeably, they protect very different things.
Understanding the difference can help nonprofits protect the identity, brand, and materials they have worked hard to create.
What Does a Trademark Protect?
A trademark generally protects words, names, symbols, logos, or other identifiers that distinguish the source of goods or services.
For a nonprofit, this could include the organization’s name, logo, tagline, or the name of a signature program or event.
Consider a nonprofit that develops a successful annual fundraising campaign. Over time, donors and community members may begin to associate the campaign’s name with that organization. If another organization starts using a confusingly similar name for its own fundraising effort, donors may be confused, and the original nonprofit may have a trademark infringement claim.
Trademark rights generally arise from using a name to identify your services, including charitable and fundraising activities. Federal registration with the U.S. Patent and Trademark Office (USPTO) adds nationwide protection and certain additional benefits, while unregistered rights are typically limited to the area where the name is used and known.
This is why choosing a nonprofit name involves more than checking whether the corporate name is available with the state regulator. An available corporate name does not necessarily mean that another organization does not already have trademark rights in the same or a similar name, and a conflict discovered after launch can force an expensive rebrand. A trademark search beforehand can help avoid that.
What Does Copyright Protect?
Copyright protects original works of authorship rather than the identity of the organization itself. It protects how ideas are expressed, not the ideas themselves, and, in contrast to trademark, it does not cover names, titles, or short slogans.
Nonprofits create copyrightable material all the time. This may include website content, photographs, videos, educational resources, reports, graphics, training materials, and other original content.
In many cases, copyright protection exists automatically when an original work is created and fixed in a tangible form, meaning no registration or notice is required to acquire these rights. Registration with the U.S. Copyright Office, however, is generally required before enforcing those rights by filing an infringement lawsuit, and registering early preserves the option to seek statutory damages and attorney’s fees.
Ownership can also become complicated when nonprofits work with employees, volunteers, photographers, designers, or outside contractors. Work created by employees within the scope of their jobs generally belongs to the nonprofit, but volunteers, photographers, designers, and other independent contractors typically own what they create unless they sign an agreement expressly transferring those rights. Paying someone to create a work does not always mean the nonprofit automatically owns the work and all rights associated with it.
Clear written agreements that assign copyright to the nonprofit can help prevent disputes later.
Trademark or Copyright?
A simple way to think about the distinction is that trademarks generally protect who you are to donors and the public, while copyrights protect what you create.
A nonprofit’s name and logo typically involves trademark protection, whereas its original photographs, videos, articles, or training manuals involve copyright protection. In some circumstances, the same project may raise both trademark and copyright considerations. A logo, for example, can serve as a trademark identifying the organization, while the artwork itself is protected by copyright that may belong to the designer unless the nonprofit obtained a written assignment.
The important question is not simply whether a nonprofit has intellectual property. All organizations do. The critical question is whether the organization knows what intellectual property it owns and whether that property is adequately protected.
Protecting Your Nonprofit’s IP
Intellectual property may not receive the same attention as fundraising compliance, tax-exempt status, or board governance, but it can become increasingly valuable as an organization grows.
Nonprofits should periodically review their names, logos, programs, publications, and other important materials to determine what intellectual property they have created and whether additional protections, such as trademark or copyright registration, are appropriate.
It is also important to address ownership when working with outside parties. Written agreements with designers, photographers, consultants, and other creators are essential to clarify who owns the final work and how it may be used. Nonprofits should also confirm they have permission to use what others created, such as popular music in a fundraising video or stock images used beyond their license terms.
Intellectual property issues may also arise when a fiscally sponsored project becomes independent, chapters or affiliates use the nonprofit’s name, or organizations merge. Agreements should address who owns the name and materials in all such transactions.
Conclusion
A nonprofit’s intellectual property is part of the organization it has built. Its name represents its reputation, while its original content and materials may represent years of work, investment, and expertise. Understanding the difference between trademark and copyright protection can help nonprofit leaders make better decisions and seek to avoid conflict before it arises. Taking the time to identify and protect these assets today can help preserve the organization’s work, reputation, and mission for years to come.