Avoiding copyright traps for designers

17 March 2016
Posted by Greta Morand (Studio Legal intern) and Suzy Wood

 

 

Avoiding copyright traps for designers

Introduction

Whether you are an up-and-coming new designer, or you’ve been in the industry for some time, it’s important to be aware of your rights and what you can do to protect your designs from being copied.

Although copyright automatically protects things like musical works and novels, it’s a mistake to assume that copyright will automatically give you the protection you need.

Studio Legal understands that costs will prevent designers from registering most of their designs. However, we do recommend designers obtain registration for their signature, timeless, unique or iconic pieces to prevent copying.

 

When will a designer lose copyright protection in their artistic works and designs?

Copyright applies to original artistic works which can include sketches and patterns. However, with some limited exceptions (one being for ‘works of artistic craftsmanship’) as soon as your design has been “industrially applied”, you will lose copyright.

Designs are automatically considered to have been “industrially applied” once the design has been applied to more than 50 articles. This applies whether it is 50 copies of the same article (like a t-shirt) or 50 different articles (like the same design applied to mugs, pens, shoes, and so on). This means copyright will be lost for most designs – after all, the point of having a great design is being able to sell your product in retail quantities! If this is the case, you will need to register your design.

 

The importance of registering designs

 It is critical that you apply for design registration before releasing your design on the market. Designs must be both “new” and “distinctive” to be registered. If your design is already out on the market, you won’t be able to register it because it won’t be considered “new” any more. So keep your cool design under wraps and don’t start selling or promoting your work until you’ve got registration!

Registration will give you exclusive rights to that design, including the right to make products from that design, sell products that are based on the design, and authorise others to do these things. It will also give you clear legal rights to demand that people stop copying your designs/artistic works. For these reasons, a registered design can be a valuable asset which can be bought and sold along with other business assets.

 

So how does the registration process work?

IP Australia is the government body that handles design applications and registrations. Your application should include representations of how your design is applied to the product, as the eye would see it.

Assuming your application passes the formalities check, the design will be registered and advertised in the Australian Official Journal of Designs, and made available for searching in the Australian Designs Data Searching (ADDS) database.  To be able to enforce your registered design rights, you will need to obtain a certificate of examination. If the examination deems your design to be new and distinct, you will receive certification meaning your design rights are enforceable.

Design registrations lasts for 5 years from the date of filing, after which you will have the option to renew registration for a further 5 years. Designs can be registered for a maximum of 10 years.

At Studio Legal, we specialise in legal protection for the creative industries. We can help you prepare your design application and undertake all necessary background checks. You can contact us on 03 9521 2128 or email hello@studiolegal.com.au.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter