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Copyright
What is it? What is it? In design terms, a copyright gives the designer the right to prevent others from copying her design. What does it protect? Broadly, a copyright protects creative expression fixed in a tangible form. An "author" of copyrightable work can be a designer or architect for example, and copyrightable "works" include text, photos, layout, drawings, artwork, buildings, and sometimes products. Copyright is limited in that it can never protect an idea; it can only protect the particular manner of expression of an idea. Thus, if you were the first to design a napkin holder having wire-form butterflies, you may be able to protect with copyright the original visual features of your specific napkin holder, but you could never use your copyright to prevent someone else from designing their own, original wire-form butterfly napkin holder. With respect to product design, copyright can protect a product from being copied, but only if the aesthetic features are "separable" from the utilitarian features of the product. This is very difficult to satisfy for most useful products. Copyright is thus better suited to protecting product designs that are more like a work of art (e.g. jewelry, fabric designs, wire-form containers, toys, etc.) than a useful product. How do you get it? A copyright to your design automatically comes into being the moment your design is created and fixed in a tangible form. You may, if you choose, register your claim to copyright at the U.S. Library of Congress by filling out a form and sending it in with a specimen (or photographs) of your design and a filing fee of $30. Registration provides you with additional rights, such as the right to sue an infringer in court, and is highly recommended. Click on image to see sample copyright registration in larger size. The copyright to a design initially belongs to the designer who created the design, unless the design is a "work for hire" in which case the copyright belongs to the hiring party. A "work for hire" can be only one of two things: (1) a design prepared by an employee within the scope of his or her employment; or (2) a "specially commissioned" design but only if: (1) the design is in one of nine enumerated categories [e.g., a motion picture]; and (b) there is a written contract saying that the design is a "work for hire". Otherwise, absent an agreement to the contrary, the designer owns the copyright. How long does it last? A copyright registration normally lasts for the life of the designer plus 70 years. It is not renewable. What are the advantages? Copyright protection for a design is quick, inexpensive and lasts a long time. You don't necessarily need to register your design, and there are no immutable deadlines for registration should a lot of time go by. In addition, U.S. courts are accustomed to copyright principles and copyright litigation. Copyright can be very effective against "knock-offs" who do not bother to alter someone else's design. The United States belongs to an international treaty known as the Berne Convention which, among other things, does not require copyright notice on the product in order for copyright protection to begin, and provides easier access to copyright protection abroad. Several amendments have been made to U.S. law to bring it into conformance with the Berne Convention, the most notable of which is that U.S. Copyright law now protects three-dimensional architectural works (i.e., the buildings themselves), instead of only the two-dimensional blueprints previously protected. A proper copyright notice on the protected work is highly recommended. It has 3 elements and takes the following form: "© 2004 Saidman DesignLaw Group". The first element is © or the word "copyright", the second element is the year of first publication of the work; and the third element is the name of the copyright owner. Damage awards from an infringer of a copyright can be determined by statute, or can consist of the infringer?s profits plus other damages sustained by the copyright owner. The infringer also must cease and desist from further sales of the product.
What are the disadvantages? With respect to product design, the major drawback of copyright protection is that it requires the ornamental features of the product to be "separable" from the functional features in order to be protected by copyright. In a notorious case, Brandir Enterprises' famous RIBBON tubular bicycle rack, which won an IDSA Excellence Award in 1980, was unable to meet the "separability" test, and was thus denied copyright protection. The court basically said that Brandir's rack, having attained the highest goal of modern industrial design (?the harmonious fusion of function and aesthetics?), thereby disqualified itself for copyright protection. In order to win in court, the copyright owner must prove that the defendant copied the protected design. Since evidence of direct copying is rare, copying is usually proved by showing the infringer had access to the design and that the two designs are substantially similar. However, the requirement of copying means that if the infringer can prove that it independently created the design, no copyright infringement will be found. How much does it cost? A copyright is free: you do not have to do anything, besides create the design, in order to "get" a copyright. In other words, your copyright exists regardless of whether you choose to register it. Keep in mind, however, that you will obtain major benefits from registration (e.g., the right to statutory damages), and that you must register your claim to copyright before bringing suit against an infringer. The median attorney fee in the U.S. for preparing a simple copyright registration application in 2002 was $275 (plus the $30 Government filing fee). If the application sails through, there is no further cost. If, however, the Copyright Office rejects your application (as frequently happens with product designs), you may need an attorney to check the grounds of refusal and prepare a rebuttal-type reply to the Copyright Office, if it is felt that there is a reasonably good chance of overturning the refusal to register. |
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