Know Your Rights! Understanding Copyright, Patents, and Trademarks
Intellectual property infringements are rife, so graphic designers should know how to protect their work. Learn about copyright, patents, and trademarks.
You only need to give platforms like Etsy and Facebook Marketplace the briefest of glances to find examples of intellectual property rights infringements. As a graphic designer, that’s one of the last things you want to happen to your work, so it’s important that you know your rights, and how to protect your designs. Understanding copyright, patents, and trademarks are an essential part of this.
Beyond protecting your own work, you may also be in a position where a client asks you to design product packaging or branding that includes a copyright, patent, and a trademark. It certainly helps to know what those terms mean in this case.
The thing is, those terms have been used so many times, the differences between them have become blurred. The result is that some designers use the word ‘trademark’ when they mean ‘copyright’, or vice versa. Let’s take a closer look at intellectual property and the different ways you can protect it.
What Is Intellectual Property?
Unless you created them for a client or employer, your original designs are your intellectual property. You are the only person who has the right to use them, profit from them, or alter them. Of course, that changes if you sell your rights of ownership or license a design to someone else.
Other than designs, intellectual property can include novels, poems, characters, a song, a sculpture—in short, it’s anything original that you create.
You can protect intellectual property in the following ways:
- Copyright–Works of art and literature usually are protected by copyright
- Patent–Inventions, new technologies, and innovations are usually patented
- Trademark–Company branding, including elements such as names, mascots, services, and slogans usually are trademarked
The laws regarding copyright, patent, and trademark vary from country to country. Our exploration of those terms below is based on definitions and laws in the United States. If you live or work in another country, we recommend speaking to a local lawyer or a representative from that country’s copyright office or service for relevant information.
In the U.S., as in most countries, graphic designers and other creatives automatically own the copyright to their original work—unless that work was done for a client or employer. You don’t need to pay for a copyright, nor do you need to register your work with the Copyright Office. However, doing so is advised, as a registered copyright is necessary if you ever need to file a copyright infringement lawsuit.
It’s important to know that a design copyright protects your original expression of an idea. Under copyright law, your original designs may not be copied or used in other ways without your express permission. The idea that inspired the design is not protected.
For example, the superhero character Superman is protected under copyright. The idea of a hero with superpowers, however, is not—which is why we also have Batman, Iron Man, Wonder Woman, and Black Panther.
In most countries, the U.S. included, patents are not used to protect graphic designs, pictures, or artwork. Instead, patents are granted to designs that can be applied to articles of manufacture. That is, the design must be for a device, method, process, or substance that’s inventive and useful.
A patent gives the designer or inventor the exclusive right to use the invention for commercial purposes for the life of the patent. For example, Apple Inc. has patented the designs of its smartwatches, which means Samsung cannot use those designs to create its own smartwatches. If you want to register a patent in the U.S., you can do so at the United States Patent and Trademark Office.
Businesses use trademarks to distinguish their brand, goods, and services from those of other businesses. You can trademark your designs as well as letters, numbers, words, phrases, logos, pictures, slogans, elements of packaging, and more. As with copyright, in U.S. law, you don’t need to register a trademark with the Patent and Trademark Office. However, it’s recommended, as it can be difficult to pursue trademark infringement lawsuits.
If you register your trademark designs, you have legally protected exclusive rights to use those designs yourself, license them to others, or sell them. Two good examples of trademarks in design include the dynamic ribbon device that used to appear under the words Coca-Cola on cans, bottles, and promotional material, and the specific purple color (Pantone 2685C) used in Cadbury’s chocolate wrappers.
Incidentally, in 2019, the confectioner lost an appeal in the UK Court of Appeal that could have upheld the 1995 trademark. The brand now uses unregistered rights in its attempts to prevent rival chocolate manufacturers from using the same tone of purple. The lesson here is to be sensible when registering trademarks.
As a graphic designer, you should know about registered designs. You can register ornamentation, patterns, configurations, and other elements that can be used to give products a unique appearance. However, you cannot register existing designs, only those that are new.
A good example of a registered design is Coca-Cola’s instantly recognizable bottles. The distinctive shape tells you it’s a Coke bottle before any branding is applied.
A look at copyright, patents, and trademarks is incomplete without mentioning fair use. The U.S. Copyright Act allows for fair use, which means others can use copyrighted works in certain circumstances without the creator’s permission. Those circumstances include:
- News reporting–Journalists and reporters can mention copyrighted work when relevant to news stories. They may also quote from other news reports if those quotes are relevant.
- Scholarly work–Students and other academics may reference copyrighted works in their papers and other published works. Those references must be relevant, and the author of the paper cannot claim the copyrighted elements as their own.
- Teaching–If you’re teaching graphic design students, you can ask them to design a new poster for the Lord of the Rings or The Devil Wears Prada without worrying about copyright infringement. These designs can be printed out on an inkjet printer or other similar machine to view the results, but cannot be sold. Teaching and education are covered by the concept of fair use.
- Parody–Fair use allows you to parody an existing copyrighted design by exaggerating it for the purpose of criticism or comedy.
- Criticism–If you are a design critic, the doctrine of fair use allows you to mention copyrighted works in your published criticism.
Now that you know more about copyright, patents, and trademarks, you’re in a better position to protect your work. While it may not stop infringements, it offers you extra security, and makes taking legal action easier, should the need arise.