Many people in the so-called’ creative industry’ get confused about distinguishing and drawing the line between design rights and copyright. It’s a fairly complicated subject to tackle – but it’s also important. Knowing what sets these two 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, not to mention the time, if a potential lawsuit over a certain product design or copyright is in dispute. That’s why, in this article, we will 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 explain the difference between design rights and copyright, let’s clarify what a design is and who owns the design rights.
Design is any product’s appearance – the shape, texture, colors, materials used for making that particular product, ornaments, contours, and so on. To qualify for a new design, your product has to be original in a way that needs to be different from any existing design. This is where protecting your creativity gets important – you don’t want anyone other than you to use your product design. People who do that are violating intellectual property claims that are illegally made. That’s why protecting your design or a brand properly is important.
When it comes to understanding who owns the design rights, in most cases, it’s typical that the design creator also owns any rights to it. This is important to remember, as you’ll see later in the article when we explain intellectual property protection and confidentiality clauses. But for now, it’s enough to understand that the creator is the one who 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 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 this is essential, and you’d want to own copyright, is 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 you feel comfortable with before you even begin making anything. Get things in writing if possible because if or when you sign an agreement that says that you’ll 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 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:
– Regarding 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 it 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 will 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 will use an example that will help guide you through the rest of the article and help you decide 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 ensure your clothes attract enough consumers. Then, you hire a photographer to take pictures of your clothes/brand and a graphic designer to help you develop your promotional campaign. You already have your brand, logo, and everything else set to launch your new clothing line, but you’re still unsure if you’re covered by copyright protection or need to apply to register your design. If that’s the case, you should ask yourself some of the following questions to know which answer applies to you.
Do I Intend to Mass-Manufacture My Creation In the Future?
As we’ve already hinted at the beginning, when mass-manufacturing your creation or a product, you must 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 service.
What’s also important is that you do this on time. You can’t wait until the creation is open for anyone to see. That means you have to ensure 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 enforce the right over your design legally. 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 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 design law and copyright law simultaneously. The reason why this isn’t possible is because the Copyright Act contains provisions. These provisions are called’ the copyright/design overlap provisions.’ They’re intended to prevent this dual protection of things. 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 decided that your products will be mass-produced, you should be aware that they won’t be protected by copyright. Assuming that the clothes you’ve designed are distinctive enough and new in terms of not being published anywhere, you’d want to consider registering your creation if the design is viable. You must apply for design protection to smoothly transition from copyright to design right. When the clothes you’ve designed on paper become a reality and people can wear them, you’ve made a mass-produced item. Your new clothesline 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 is something you can do. For instance, you can mix a trademark and a registered design. Many people consider multiple intellectual protection as some of the intellectual property strategies they implement. Your designer clothes can be branded with a logo, automatically allowing you to protect your creation with a registered trademark.
But what about those photos a photographer made or websites, websites a graphic designer created, and promotional material? Are these things protected by design rights or a trademark? They aren’t protected by either of those two since these things fall under copyright.
Before things get confusing again, let’s 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 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 have at least an exclusive license to use the copyright.
In this 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 figuring out how to resolve these circumstances. It’s important to ensure that you’re the only person who 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 can save you from a potential hassle in the future.
Consider Including a Confidentiality Clause in Your Contract
On top of this, you should also include a confidentiality clause in your contract. For example, let’s say that the photographer or graphic designer wants to use the content they’ve created for their portfolio before you’ve decided against 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 their portfolio, you could be facing trouble 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 regarding 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 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 before you move on to 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 understand many different intellectual property rights before deciding whether intellectual property protection suits you and your current circumstances.
We recommend you do your research on these matters. Still, we also suggest you consult a reliable and experienced attorney or law firm specializing in these matters. That way, you’ll be certain 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 want to avoid spending your time, energy, and valuable resources later on something that could have been resolved earlier.