The art & design world has been abuzz lately with copyright issues and, since we’ve been talking a lot here about original and authentic design, I thought it would be helpful to gather some good information about copyright straight from the people who know it best: the lawyers. Here are some helpful tips to read through before you even put pen to paper (or “pencil” to iPad).
1. The Law Protects Your Work, Not Your Idea
Copyright law, which is the body of law that protects original and creative works from misappropriation, does not protect a mere idea. To the contrary, an idea by itself does not receive any type of copyright protection. It is the expression of that idea fixed in a tangible medium—the form in which you present the idea—that receives copyright protection. This legal protection allows the copyright owner the exclusive right to:
- Reproduce the creative work
- Prepare other works based upon that work (so called derivative works)
- Distribute copies of the work, and
- Publicly display the work
The required level of creativity or skill in a copyrighted work is not very high—put another way, the work does not have to be very good—but it does have to be original. If you work for an employer, the employer has the right of ownership of your work as a “work for hire.” If you work as an independent contractor, either you or the other party may own the work (the other party may be deemed merely to have a non-exclusive license) depending on the written terms of your agreement.
2. The Creative Work Receives Copyright Protection Upon Creation
A designer has a copyright in his or her creative work when that work is fixed in a tangible medium. It is not necessary for the designer to obtain a copyright registration from the U.S. Copyright Office in order to have a copyright in the creative work; the copyright arises automatically as a matter of law the moment pen or brush is put to paper. You don’t need anyone’s permission to put a copyright notice on your work, so you should: © [year of creation] [your name]. That being said, you should register your copyright because it brings additional benefits.
A copyright registration is a prerequisite to suing for copyright infringement, or for obtaining statutory damages or attorney’s fees if you do. Registration, which is cheap and easy to do on a one-page form from the Copyright Office, gives you a better set of legal rights.
3. An Ornamental Design for a Functional Item May Receive Design Patent Protection
In addition to copyright protection, a designer should be aware of potential patent protection. In the United States, a design patent may be obtained from the U.S. Patent and Trademark Office for the ornamental design of a functional item, e.g., decorative design on furniture, or the distinctive grille on a car.
The key difference between a design patent and a copyright is that copyright law generally prevents nonfunctional items from being copied (e.g., art, sculpture, book, music), whereas a design patent protects the ornamental element of a functional product.
Why get both? Belt and suspenders; better protection. Unlike copyright, you don’t get a design patent automatically; you have to apply, and it can cost at least several thousand dollars. Designers should seek the aid of a qualified attorney in obtaining a design patent. In other countries, you may also be able to obtain a design registration for comparable protection.
4. You Should Place Others on Notice of Your Copyrights
As stated above, the author of a creative work fixed in a tangible medium has a copyright in the creative work upon creation. For this reason, the copyright owner has the right and ability to notify others of this right. The copyright owner may elect to do so by placing a © next to the copyrighted work indicating the date upon which the work was created or inserting language that notifies viewers that the work is the copyright of the designer.
5. What is Copyright Infringement?
Someone copies your design, or “infringes” your copyright, when they copy it without permission or license. Copyright infringement consists of two basic elements:
- Ownership of a valid copyright by the plaintiff;
- Copying by the defendant.
There is seldom direct evidence of copying by the defendant, so this second element in turn can be satisfied by
- Substantial similarity between the defendant’s work and the copyrighted work;
- Opportunity by the defendant to have seen and copied the copyrighted work.
Once infringement is shown, the plaintiff may elect to receive statutory damages in lieu of proving actual damages if copyright was registered prior to the infringement; these can range from $200 for “innocent” infringement, to $150,000 for intentional infringement. In addition, the Court may award attorney’s fees.
6. What To Do When You See Someone Has “Copied” Your Work
The copyright owner has sole copyright in his or her work. But before you send a demand letter to the party copying your work, or post a message on a social networking site that someone has copied your work, do your homework. You might be convinced that someone has copied your design, but there may be other prior art out there that precedes your own, or parts or elements of your design may be subject to what is called fair use. It is always best to seek the advice of a qualified intellectual property attorney before taking affirmative action.
This article is provided for general informational purposes and should not be construed as legal advice or legal opinion on specific facts or circumstances nor as a solicitation of legal business. Legal advice is specific to each situation and if you have a legal issue, you should consult an attorney. No actual or implied attorney-client relationship exists or has been created by virtue of this article.
About the authors: Richard Sybert is a senior partner and Chair of Gordon & Rees LLP’s Intellectual Property practice group. Jordan Derringer is an associate at Gordon & Rees LLP and a member of the Insurance practice group. Justin Aida is an associate at Gordon & Rees and a member of the firm’s Intellectual Property and Sports, Media and Entertainment practice groups. Gordon & Rees LLP is a full-service firm focusing on complex litigation and sophisticated business transactions with over 525 lawyers admitted in 38 U.S. jurisdictions, as well as Canada, England and Wales, Hong Kong, and Mexico. Gordon & Rees LLP has 29 U.S. offices in 19 states and 35 national practices.