Copyrighting a design requires the copyrighter to determine whether it is tangible, the benefits of registering the copyright, and how they should proceed in the case of a possible infringement.
Copyright laws such as the Copyright Act or the Digital Millennium Copyright Act (DMCA) protect original content that one creates. A person who owns the copyright to certain designs has the exclusive right to make copies of the work, distribute, sell, lend, rent, perform or display the work publicly, as well as make adaptions or imitations of the work.
As a general rule, the copyright belongs to the owner of the design. This means that they have permission to utilise the design in any way and they may also grant permission to someone else.
An exception to this rule is “works made for hire”, which is work prepared by an employee within their scope of employment, or work that is specially ordered or commissioned for use. The work may be commissioned or ordered as a contribution to collective work such as being part of a motion picture, audio visual, translation, supplementary work, compilation, instructional text or test material. A party may also expressly agree to the use of the work in writing.
An illustration to make this clearer would be a customer who hires a web designer to create a website. The work is classified as commissioned work, however, website work does not qualify as work that is made for hire. This means that there needs to be a document that will expressly state that the customer will own the copyright for the website. Should this letter be absent, the default rule is that the copyright remains with the web designer.
Copyright laws protect several types of designs, including but not limited to toys, prints, posters, sculptures, jewellery designs, technical drawings, fabric design or architectural designs. Logos and symbols cannot be copyrighted, but they can be protected by trademark. However, if the logo symbol is considered a unique piece of work, it may qualify for copyright protection.
According to Joseph Mandour, a Los Angeles intellectual property attorney, for a design to qualify for copyright protection, it must be an original work of authorship which is independently created by a human author who possesses some degree of creativity. Copyright protection begins the moment a creative writes the poem, comes up with the lyrics to their music, or creates and designs the logo. Protection begins as soon as the work is formulated into a tangible form, according to Flavia Campbell, an intellectual property attorney.
Importantly, Campbell emphasises that for one to receive copyright protection for a design, the design must be original work and must be in a tangible form. A tangible form means that the design must be able to be seen and touched. On the other hand, original work is defined as having a minimal degree of creativity. The requirement for the design to be in a tangible form means that one cannot copyright facts or ideas.
An example would be if one comes up with a new design for a purse and then creates the purse. The person will need to copyright the purse, and this will also extend to copyrighting the design. However, the design needs to be original. This means that one cannot take an existing purse and add different coloured glitter on the design and then want to copyright it.
Copyright steps and registration
Firstly, one needs to create a contract and obtain legal transfer of the copyright. If a person did not come up with the design, it is advisable to agree with the designer about copyright ownership before work on the design assumes.
Secondly, it is important to consider copyright registration. Registering the copyright is not required for a copyright to exist, however, it is recommended. The registration provides a certificate which is issued by the United States (US) Copyright Office and creates a public record of the copyright. The registration is required if the copyright owner wants to bring an action for copyright infringement. The registration means that in a copyright infringement action, the person who is suing is eligible for an award of damages, attorney’s fees, and costs. The work needs to be registered before the infringement action or within three months after the work has been published. Lastly, registration grants permission to a copyright owner to record their copyright with the US Customs and Border Protection.
One can register their copyright by filing an application form via mail with the US Copyright Office, or they can do it online by visiting their website and following all the prompts. The copies of the work being registered will be required and payment must be made for the copyright fees. The registration fee usually amounts to approximately $85. Posting a tangible form of the design or attaching it to the online application may prove to be difficult, therefore it is advised to draw it on paper or compress it into a digital form with a detailed description of all its elements.
Most importantly, it may take a couple of months or more than a year for the Copyright Office to register a person’s work, however the copyright begins on the date that the application was made on.
After one’s design is copyrighted, they will have exclusive rights to market, sell and reproduce the product. There is also an option to offer licenses to other businesses that would like to sell the product, and a copyright holder may make money by charging for these licenses.
It is important to note that all copyright items that are registered after 2002 hold a copyright time span of 70 years after the death of the creator. If the work is created by a corporation or through a pseudonym, the copyright expires 95 years after the work is published or 120 years after it is created – the shorter period will apply.
Lastly, if one’s copyright has been infringed, they may rely on the DMCA protection and file a notice to take down the design. However, if the person who is being accused of infringing on the copyright used the material for teaching, research, criticism, news reporting, or comment, it might fall under the domain of fair use which means that the person did not commit a copyright infringement.