Many people who work in the so-called ’creative industry’ get confused when it comes to the topic of distinguishing and drawing the line between design rights and copyright. It’s a fairly difficult and complicating subject to tackle – but it’s also the important one. Knowing what exactly sets these two types of intellectual properties apart can mean a huge difference.
In today’s world, if you’re not fully protected in this regard, you risk losing a lot of money, and not to mention the time, if there’s a potential lawsuit over a certain product design or copyright in dispute. That’s why, in this article, we’re going to talk about some key facts that any designer should be aware of when it comes to understanding how these things work.
Let’s Talk About Designs and Design Rights First
Before we begin to explain the difference between design rights and copyright, let’s clarify what is a design and who owns the design right.
Design is any appearance of a product – the shape, texture, colors, materials that are used for making that particular product, ornaments, contours, and so on. In order to qualify for a new design, your product has to be original in a way, which means that it needs to be different from any existing design. This is where protecting your creativity gets important – you don’t want anyone else other than you to use your product design. People who do that are violating different types of intellectual property claims, and are illegally making money. That’s why it’s so important to protect your design, or a brand properly.
When it comes to understanding who owns the design rights, in most cases it’s typical that the creator of the design is the one who owns any rights in it as well. This is something which is important to remember, as you’ll see later in the article when we begin to explain things such as intellectual property protection and confidentiality clauses. But for now, it’s enough to understand that the creator is the one which owns rights in the design, except in a situation where the creation was developed under someone else’s sponsorship or employment.
For example, if you’re a fashion/clothing designer working for a company that makes clothes, all of your creations were developed under the ’patronage’ of that particular firm. Any work you’ve commissioned or created during this period of employment belongs to the employer, together with the rights (unless the contract that you’ve signed states otherwise).
The crucial thing to remember here is that you own the copyright unless you sign a different contract. The main reason why this is essential, and why you’d want to own copyright is to be in a position to decide what happens to your work after it becomes public (and who gets to publish it). That’s why you always want to sign a contract that you feel comfortable with before you even begin to make anything. Get things in writing if possible, because if or when you sign an agreement that says that you ’work for hire’, you should be aware that it’s practically no longer yours.
Some Key Points That You Should Understand at the Very Beginning
First off, it should be made clear that copyright protects an individual’s artistic and literary works. But this still doesn’t answer the question of whether you’d need a registered design right to protect your product when it’s commercially applied. To clarify things further, let’s go through some crucial information:
– when it comes to copyright, we’ve already mentioned that it protects artistic and literary works. We should also add at this point that this applies to 2D design and those designs that haven’t been commercially exploited as of yet;
– mass-manufacturing your design requires you to protect your product with a registered design right;
– if you intend to mass-manufacture your design, you should keep your design a secret, and of the public records until it becomes successfully registered. This means that you should submit your application as soon as you realize that you’re going to proceed with the mass-manufacturing of your design. It’s important not to reveal your design before the application goes through.
Now, we’re fully aware that these things may sound a bit too abstract and that they should be made more clear. To illustrate these things better, we’re going to use an example that’s going to help in guiding you through the rest of the article and that’s going to make your decision whether to protect your work of art with the design rights or copyright.
So, let’s say you’re in the business of designing clothes. It’s only natural that you want to advertise your product and make sure that your clothes attract enough consumers. Then you hire a photographer whose job is to take pictures of your clothes/brand, and a graphic designer who’s going to help you with developing your promotional campaign. You already have your brand, logo, and everything else set to launch your new clothing line, but you’re still not quite sure if you’re covered by copyright protection, or you need to file an application to register your design. If that’s the case, you ought to be asking yourself some of the following questions, so you know which answer applies to you, in particular.
Do I Intend to Mass-Manufacture My Creation In the Future?
As we’ve already hinted at the very beginning, when mass-manufacturing your creation or a product, you need to protect it with a registered design right. You can’t possibly expect to cover all its appearances unless you don’t opt for this kind of intellectual property protection services.
What’s also important is that you do this on time. You can’t wait until the creation is out there in the open, for anyone to see. That means that you have to make sure that all the clothes sketches or ideas remain hidden from the public eye. As soon as you have a certain prototype of your new clothing line, it’s strongly advised to begin the application process. That way you’ll be able to legally enforce the right over your design. The main reason why you want to keep your creation secret is to stop others from copying your product before you legally protect it. If that happens (someone copyrights your idea before you do that), you won’t be able to proceed with the design rights application process, and you won’t be eligible to secure a design right over your own creation.
Would Covering My Creation With Design Rights and Copyright Simultaneously Solve My Problems?
The shortest possible answer to this question is: No. First of all, it’s not even possible to protect your design object by designs law and copyright law at the same time. The reason why this isn’t possible is due to the fact that the Copyright Act contains provisions. These provisions are referred to as ’the copyright/design overlap provisions’, and they’re intended to prevent this dual protection of things. Now, you might be wondering why this is so – it’s because certain things should be protected only under the Designs Act 2003.
To go back to the particular case that involves a fashion/clothes designer. Once you’ve made the decision that your products are going to be mass-produced, you should be aware that they won’t be protected by copyright. Assuming that the clothes that you’ve designed are distinctive enough and new in terms of not being published anywhere previously, you’d want to consider registering your creation, if the design is viable for this. It’s paramount that you apply for design protection, in order to make a smooth transition from copyright to design right. When the clothes that you’ve designed on paper become a reality and people all around can actually wear them, you’ve made a mass-produced item. This is the moment when your new line of clothes becomes protected under a design right if you’ve filed an application and are eligible for this.
Can I Mix Other Types of Intellectual Property Protection?
This actually is something you can do. For instance, you can mix a trademark and a registered design. Multiple types of intellectual protection are something that a lot of people consider, depending on the intellectual property strategy they choose to implement. Your designer clothes can be branded with a logo, which automatically gives you an opportunity to protect your creation with a registered trademark.
But, what about those photos that a photographer made or website content that a graphic designer created, along with other promotional material? Are these things protected by design rights or a trademark? Well, they actually aren’t protected by either of those two since these things fall under copyright.
Before things start to get confusing once again, let’s just say right away that copyright is an automatic right provided to the creator of the content. This means that a professional photographer or graphic designer that you’ve hired for their services will have copyright over their intellectual property (photos, web content, promotional material, and so on). In this situation, you’d want to negotiate to have the copyright assigned to you, or, if this isn’t plausible, you’d want to at least have an exclusive license to use the copyright.
In this type of situation, the best solution would be to have a contract that specifies these things clearly, so you don’t end up in an undesirable position where you need to spend unnecessary time, money and energy for figuring out how to resolve these circumstances. It’s important to ensure that you’re the only person that can benefit from the creation of that particular intellectual property. Our advice is to be careful when working with contracted service providers. And if there’s a contract, make sure you’ve read all the small print at the very bottom of the contract. These terms and conditions are something that can save you from a potential hassle in the future.
Consider Including a Confidentiality Clause to Your Contract
On top of this, it’s also recommended that you include a confidentiality clause in your contract. For example, let’s say that the photographer or graphic designer wants to use the content that they’ve created for their own portfolio before you’ve made a decision about registering the design of your clothes. This can put you in a bad position.
Remember how we’ve talked about the importance of keeping your ideas, prototypes, sketches, and other material hidden – if the photographer or a graphic designer has a right to disclose your images via her or his portfolio, you could be facing troubles registering the design of your clothes.
Protecting a Print or a Pattern – Copyright or Design Right?
As you can see, you should keep an eye on many different things, when it comes to protecting your creativity. But what about protecting a print or a pattern? How would you proceed in that situation?
As you can probably guess by now, applying a print or a pattern to an object would involve registering a design right, in order to protect it. It’s also important to note that your print or a pattern will be protected by copyright automatically, which means that you need to register a design right before you move onto commercially manufacturing a product.
A Brief Summary
The topic of intellectual property protection can be a rather tricky one, especially if you don’t pay close attention to these things. It’s strongly advised to develop a basic understanding of many different intellectual property rights before you make a final decision about which type of intellectual property protection is the most suitable for you and your current circumstances.
We recommend you to do your own research on these matters, but we also suggest you consult with a reliable and experienced attorney or a law firm that specializes in these matters. That way you’ll be certain that you’ve made the right decision. Being smart and cautious about these things from the very beginning can be proven to be a very wise decision in the future. You definitely want to avoid spending your time, energy, and valuable resources later on something which could have been resolved earlier.