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Protecting your rights

Everything you need to know about copyright and intellectual property

It’s a question that anyone working in a creative industry will have grappled with: how can I be sure that other people won’t take advantage of my work?

The issue of intellectual property rights is a wide ranging and thorny one. Copyright violations play a key part in the ongoing trade dispute between the US and China; tattoo artists have sued film studios and video games manufacturers over their use of celebrity ink (the creator of Mike Tyson’s face tattoo settled with Warner Bros. over its use in The Hangover movies, for example); and in the world of furniture making, bespoke designs frequently ‘inspire’ similar items.

In Australia in 2018, Aldi withdrew a stool that bore a striking resemblance to a piece by designer Mark Tuckey from sale the night before it was due to be released. In the UK, there have been several high-profile rows about items with similar designs to iconic pieces, such as the Eames DSW chair.

Today, with technological innovations such as 3D printing becoming common it is harder than ever to ensure that your work remains your own. And while it is said that imitation is the sincerest form of flattery, most craftspeople would prefer their work to be admired rather than copied.

So how best to make sure that your hard work benefits you, rather than rivals and pirates?

In theory there are plenty of protections.

In the UK intellectual property applies to ‘something unique that you physically create’, and the good news for self-employed designers is that you will usually own the rights to anything you produce, even if it is commissioned by someone else.

Copyright and design right apply automatically, but you can also apply to register a design, a trademark or a patent.

On paper the copyright situation appears positive. In 2016 the UK extended the copyright for industrial design – in other words 3D items – from 25 years after an item is first marketed to 70 years from the death of the creator.

Meanwhile, design right ensures automatic protection for any designs for 10 years from the time it is sold or 15 years after its creation – whichever is earliest.

Despite having these automatic protections, it is important to be prepared and have documentation and proof that your work is your own. It is worth treating intellectual property as you would your tax return – it might not be fun to deal with, but it is necessary.

To that end, keep records of commissions, phone calls and emails and file away your drafts and designs. Maintaining a log of your work is also worthwhile.

Some designers put money aside just in case, to pay for legal advice or help in a dispute. Hopefully the fund will remain untouched, but it offers peace of mind and means that they know they will be able to fight their corner if necessary.

TYPES OF PROTECTION:

COPYRIGHT:

Copyright applies to written, dramatic, musical and artistic work until 70 years after the author’s death. But while copyright applies to all 2D works of art, designers of 3D items must prove their product is one of ‘artistic craftsmanship’, and unfortunately there is no set definition for this.

As rights management organisation DACS warns: ‘Whether an artwork demonstrates artistry or not is subjective. The fact that an item is created by an artist does not, in itself, confer the quality of artistry on an item. Equally, mere aesthetic appeal is not sufficient. For instance, items of furniture such as sofas and chairs, though they display craftsmanship and are intended to appeal to the purchasing public, are not considered artistic if they are devoid of extraordinary features.’

Copyright, though, will apply to decoration. ‘For instance, were Picasso to have painted a design onto an ordinary chair, that painting would be protected as with any other Picasso work,’ explains DACS.

DESIGN RIGHT:

This automatically protects a 3D design for 10 years after it was first sold or 15 years after it was created. But according to the UK Intellectual Property Office (UKIPO), unregistered design right only applies to the shape and configuration of objects, in other words how the different parts of a design fit together.

You will also need proof that you created the design, and when. UKIPO suggests ‘getting signed and dated copies of your design drawings or photos certified and kept by a solicitor or intellectual property attorney’. You can also send them to yourself by registered post and keep them unopened.

These design rights do not cover 2D aspects of a design, such as patterns.

REGISTERED DESIGN:

For a fee you can also register your design. Registered design rights safeguard the appearance, physical shape, configuration and decoration of the item.

Registration protects all aspect of your design, allows you to prevent others from using it for up to 25 years (with the registration renewed every five years) and makes taking legal action against infringement and copying easier. The design will be stored on a searchable database.

For a design to be eligible it must not be offensive or include protected emblems, such as the Olympic rings. It must also not count as an ‘invention’. Contact UKIPO for more information on how to register a design.

PATENTS AND TRADEMARKS

Further protections are available if you design a new working part for an item or have a unique logo or want to give your design a name.

Patents cover entirely new inventions and can take a long time to secure. A trademark can cover a combination of words, 2D designs and patterns, and colours that define your product.

WHAT TO DO IF YOU THINK YOU HAVE A CASE

If you believe your rights have been breached, the first port of call should be UKIPO or, if you see a design you believe you own being sold commercially, contact Trading Standards.

It is also important to check the UK design database. Visit Designview (www.tmdn.org) to search for designs registered in the UK by the World Intellectual Property Organization and the European Union Intellectual Property Office to make sure that the item isn’t registered by someone else.

If you do have a case this is where your records come in as, if you have not registered the design, it is the owner’s responsibility to prove someone has intentionally copied it.

There are several ways to settle a dispute. UKIPO offers a mediation service, and this is an important stage in the process. The next step would be litigation, but for disputes of up to £10,000 there are cheap court mechanisms that do not require lawyers to get involved.

If you do need a lawyer there is no shortage of legal firms that specialise in IP – but remember that there will be, potentially significant, costs involved.

But defending your intellectual property is important and is something that designers and creatives should always have at the forefront of their minds. Your work is your own and you deserve to be recognised and rewarded for your efforts.