Copyright and Designs Law for Furniture Designers

Written by Managing Principal, Jennifer Tutty

Copyright and designs law have a lot to say when it comes to protecting the ownership and use of a furniture designer’s work.

At Studio Legal, we love educating our furniture design clients on the scope and value of their intellectual property rights and in particular, how both copyright and design law can be used to help better commercialise and be duly recognised for their work.

Our Managing Principal Jennifer Tutty has put together a handy Q&A of all the things furniture designers (and those working with furniture designers, such as interior designers, photographers, builders, trades and developers) need to know about copyright and design law.

Firstly, we will walk through a series of questions on copyright law, and secondly a series of questions on designs law.

Does Copyright Protect Furniture and Furniture Designs?

Well, sometimes. And then, even if it does, copyright protection can be lost when furniture designs are industrially applied (more about this below in the second half of this article).

In terms of what might be protected by copyright in terms of furniture designs and products however, Australia’s Copyright Act 1968 (Cth) (Copyright Act) protects ‘artistic works’.

Under section 10 of the Copyright Act, “artistic work” means:

 (a)  a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

 (b)  a building or a model of a building, whether the building or model is of artistic quality or not; or

Therefore:

1. Furniture sketches, drawings and computer aided drawings are protected by copyright as artistic works (Furniture Drawings) unless they are ‘industrially applied’ (more about this below).

2. Furniture products (Furniture Products) may be protected by copyright as works of artistic craftsmanship if they display a high level of aesthetic and craftsmanship (Works of Artistic Craftsmanship).

3. Photographs of Furniture Products are protected as artistic works (Furniture Photographs).

Does Copyright Protect Furniture Ideas, Styles and Concepts?

No! Copyright does not protect furniture styles, techniques and concepts per se.

These ideas must be expressed in a material form to be protected. For example, if you talk about an idea for furniture product with another person, this will not be protected.

However, if you create physical or digital records of your ideas or concepts or using your style or concepts (i.e. you create drawings of the furniture design), then your idea has been put into ‘material form’ and may be protected.

What Requirements Must be Met for a Furniture Designer to Receive Copyright Protection?

The first requirement is that the creative idea must have been expressed ‘in a material form’ (i.e. written down on paper, entered into a computer programme). As outlined above, copyright does not protect ideas per se.

The second requirement is that the work (i.e. the furniture drawings) must be ‘original’. Originality, for the purposes of copyright, does not require artistic skill or innovation. Rather the work must be attributable to the creator’s skill, labour or judgment.

Who Will be the Owner of Copyright Materials Created by Furniture Designers?

Generally, the ‘author’ of an artistic owns the copyright in the work although there are some exceptions.

The Copyright Act does not define who is an ‘author’, however the author will usually have put in creative skill and effort in creating the work. 

What about Commercial Clients?

A commercial client who commissions furniture design services from a furniture designer will not automatically own the copyright in the copyright materials created under that engagement. Copyright remains with the furniture designer (unless otherwise agreed).

What about Government Clients?

The rules are different however where a furniture designer provides services to the Commonwealth, State or Territory Government (or their agency). Where a furniture designer prepares copyright material at the government’s direction, the government will automatically own that copyright material.

What about Employees of Furniture Design Businesses?

It is important to note that employees of furniture design businesses will automatically assign (i.e. legally transfer) copyright materials they create in the course of their employment to their employers. However, if furniture design businesses hire contractors to create copyright materials, the contractors will retain ownership of the copyright in those materials, unless the contractor agrees (in writing) to transfer the copyright to the furniture design businesses. This is why it is important for furniture design businesses to enter into contractor agreements with their contractors whereby the contractors assign copyright and other IP assets to the business.

Do you Have to Register Copyright for Furniture Designs?

In Australia, copyright protection is an automatic right that is created as soon as the work is put into material form.

However, you do not need to register it, nor do you have to display the © symbol, in order for your work to be protected. We do however recommend a copyright notice is placed on materials protected by copyright to inform the public of a furniture designer’s rights.

What Rights Does a Furniture Designer who is the Copyright Owner of Artistic Works Have?

Under the Copyright Act, the copyright owner of Furniture Drawings or Works of Artistic Craftsmanship (types of artistic works) has the exclusive right to:

-Reproduce the works.
-Publish the works; and
-Communicate the works to the public (i.e. via electronic/online means);
-Assign or licence any of the above rights to others; and
-Take legal actions against infringers.

For example, if you are the copyright owner in Furniture Drawings or Works of Artistic Craftsmanship, you have the exclusive right to:

-Make reproductions of those things (e.g. physical products, digital copies or photographs);
-Publish the work for the first time (e.g. sell photographs of the works); and
-Communicate the work to the public (e.g. post your Furniture Drawings online).

How can a Furniture Designer Deal with Copyright?

There are 2 mains ways to deal with copyright. The first is by assignment (this means transferring ownership of copyright) and the second is by licence (giving permission for someone else to use the copyright).

Assignments

For an assignment of copyright to be valid, it must be in writing and signed by or on behalf of the copyright owner. Copyright ownership can also be transferred by way of a will or other testamentary documents.

Licensing

Licences can be provided as follows:

-On an exclusive basis (the licensee has the exclusive rights to use the copyright);
-On a non-exclusive basis (the licensee has the non-exclusive rights to use the copyright); and
-On a sole basis (the licensee is the only other person entitled to use the copyright aside from the copyright owner).

How Long Does a Furniture Designer’s Copyright Last for?

Generally, copyright in an ‘artistic work’ will last for the life of the person who created the work plus 70 years after their death.

What are Moral Rights in Furniture Design?

If a furniture designer’s work is protected by copyright, then the creator of the work also has ‘moral rights’ in that work.

Moral rights include:

-The right to be attributed as the author of the work;
-The right not to have the work falsely attributed to someone else; and
-The right to take action if the work is treated in a derogatory way.

In some countries, to claim moral rights over a copyright work, the creator has to proactively ‘assert’ your moral rights (i.e. NZ and UK). In Australia however, a creator simply acquires moral rights upon creation of the copyright work.

Do Furniture Design Businesses Have Moral Rights?

Moral rights belong to individual creators (i.e. individual humans) not organisations or businesses (such as furniture design companies).

Unlike copyright, moral rights cannot be licensed or transferred to another person. The moral rights remain with the original creator of the work, even if that person licences or transfers the copyright.

Therefore, furniture designers who have authored artistic will have moral rights in those copyright works (i.e. the employees of furniture design businesses). However, their employers will not acquire any moral rights over those copyright works.

Can Furniture Designers Waive Their Moral Rights?

In Australia, it is not possible legally to ‘waive’ your moral rights like it is in some countries. However, an author can consent in writing to other people’s specific actions or omissions which would, in the absence of consent, amount to an infringement of their moral rights.

It is a common for furniture design businesses to have their employees consent (via their employment contract) to their moral rights not being observed in relation to works they created while employed. This is so employers are not required to provide any attribution of products or designs to their employees which would be undesired and/or impracticable.

In addition, these types of moral rights consents are typically seen in design services agreements especially with developers, furniture designers and larger building contractors.

How Should Furniture Designers and Furniture Design Businesses be Attributed for their Work from a Copyright Perspective?

Where they are the Copyright Owner

If a furniture designer or a furniture design business owns the copyright in an artistic work (i.e. a Furniture Design, Furniture Photograph or Work of Artistic Craftsmanship) they should be listed as the owner of the copyright.

Examples of a copyright notice used in Australia is as follows:

Where They Have Moral Rights in Their Work

As outlined above, it is common for employee furniture designers of furniture design businesses to agree to moral rights consents in their employment agreement whereby their employers do not need to credit them as creators of their work for client projects.

Therefore, individual employee furniture designers are not commonly attributed as creator of various furniture design assets, although sometimes furniture designers who are owners of the firm or senior will be. See ‘Jennifer Tutty’ example below.

If a firm hired a special contractor furniture designer to work on a project, then it is likely that that contractor will want to be attributed as a contributor to the creation of the furniture designs. See ‘John Smith’ example below.

Furniture Design by Jennifer Tutty and John Smith for Studio Legal.

Can you Take or Commission and Then Share Photographs of Furniture Products Protected by Copyright?

From a copyright perspective, the answer is sometimes!

Section 65 of the Copyright Act, states that the copyright in a sculpture or work of artistic craftsmanship work  (which could be a unique furniture design) that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast.

However, if the furniture designer has acquired a reputation in the furniture product, you may commit the tort of passing off, or engage in misleading and deceptive conduct under the Australian Consumer Law if you share the photograph for commercial purposes and make a misrepresentation that you are affiliated in some way with the owner of the furniture design.

Can you use Another Photographer’s Photographs of Furniture Products?

It is a common misconception that furniture designers can automatically use photographs of their work, especially if shared on social media platforms like Instagram.

While a photographer may be more than happy to have a furniture designer reshare and use their photographs, technically it will be copyright infringement if you do not seek their permission to do so.

Furthermore, if you fail to credit the name of the photographer in relation to the sharing of any photo, you will have infringed the moral rights of the individual photographer who took the photo.

Does a furniture designer need permission of a landowner or occupier to take and publish photographs of their work on the landowner or occupier’s land?

To avoid liability for trespass, furniture designers should obtain permission from the owner and occupier of private property before they film and photograph their furniture design work carried out, or products located, there.

In addition, if the owner or occupier has acquired a reputation in the location, the furniture designer may commit the tort of passing off or engage in misleading and deceptive conduct under the Australian Consumer Law if the furniture designer shares images of their work on the location without the owner and occupier’s permission.

Furniture designers should include an express clause in their contract that the client agrees they can attend the site to film and photograph their work and to use those film and photographic assets to promote the project and their business generally.

When Might a Furniture Designer Lose Copyright Protection Over Their Work?

Copyright law generally does not protect ‘functional’ items and leaves this up to designs law. Designs are regulated in Australia by the Designs Act 2003 (Cth) (Designs Act).

If a Furniture Product embodies the visual features of shape and configuration of a Furniture Drawing, the product will be deemed a ‘corresponding design’ under the Copyright Act (Corresponding Design). Subject to any exceptions, as outlined below, if the Furniture Product/Corresponding Design is then ‘industrially applied’, the furniture designer will lose copyright protection over the underlying Furniture Drawing.

What is Industrial Application?

A Furniture Product/Corresponding Design is deemed to have been industrially applied if it is applied:

-To more than 50 articles; or
-To one or more non-handmade articles that have been manufactured in lengths or pieces.

Expectations

If a Furniture Product/Corresponding Design is a 2D design or a Work of Artistic Craftsmanship, the general rule is that you should retain copyright protection over the Furniture Product/Corresponding Design even if industrially applied.

However, despite this and considering there are often disputes about whether a product is a ‘work of artistic craftsmanship’, furniture designers should carefully consider whether design registration is required to best protect these types of Furniture Products/Corresponding Designs even though copyright protection might be available.

How Can a Furniture Designer Take Steps Under the Designs Act to Protect Their Furniture Designs and Furniture Products From Copycats?

As outlined above, if a furniture designer ‘industrially applies’ a Furniture Product/Corresponding Design, they will lose copyright protection. It is therefore critical for furniture designers to consider how they can use the Designs Act to protect such Furniture Products/Corresponding Designs.

The Designs Act protects the overall appearance of tangible products, based on a combination of one or more visual features. These features include the shape, colour, configuration, pattern and ornamentation of the product – but do not include the feel of the product or materials used to create it.

In order to register and enforce a design, the design needs to be ‘new and distinctive’ when considered to other existing designs throughout the world (known as the prior art base).

Is it Easy to get a Design Registration for Furniture?

Copyright protection applies automatically in Australia – however protection of a design requires registration under the Designs Act and the payment of registration fees. So, it’s not ‘easy’ or as simple as acquiring copyright protection.

Design registration is a two-part process is Australia. The first is for the design to be registered and second is for the design to be certified. During the certification process, IP Australia will formally review and decide whether the design is indeed ‘new and distinctive’. If it is not, the design registration will be cancelled unless the decision is overturned on opposition.

It is important to note that furniture designers can only take legal action against a copycat in relation to a design registration if it is ‘certified’. A strategy for furniture designers is to leave a design registration uncertified, and only certify if they wish to enforce the design registration.

To learn more about how to register furniture designs including the grace period that applies to filing design registrations in Australia, you can head over and read our blog How To Protect Your Designs (here).

Can you Have Both Copyright and Design Protection Over a Furniture Design?

Generally, once a design is registered under the Designs Act, it loses copyright protection (this includes furniture designs that are Works of Artistic Craftsmanship). However, some designs may be eligible for dual protection under the Copyright Act and the Designs Act (see below).

Dual Protection

Dual protection is possible for designs of two-dimensional pattern or ornamentation that result in the reproduction of an artistic work when applied to the surface of an article (for example a design pattern for furniture textiles or an artwork printed onto a furniture cabinet).

What Does a Design Registration Give a Furniture Designer in Terms of Legal Rights?

Like trade marks, design rights are limited to the country you apply in. So, if you apply in Australia for a design registration, it will only apply Australia. If you want to protect and sell your designs in overseas territories, you will need to register in those territories.

If you register your design in Australia, you will have the following rights:

-The exclusive right to sell your design in Australia;
-The exclusive right to use your design within Australia; and
-The exclusive right to authorise other people to use your design within Australia.

Design law in Australia offers limited protection over designs compared to copyright law. The maximum period a design can be protected under the Designs Act is ten years.

Once your Designs Act protection has expired, anyone is permitted to make a replica of the design without infringing your rights under either designs law or copyright law.

Further Information

For more information about copyright law, check out this blog post:

9 Common Mistakes People Make About Copyright

If you have any more burning questions about copyright law and design law for furniture designers, please contact us through our online form or via email at hello@studiolegal.com.au.

Written by Managing Principal, Jennifer Tutty

Published 6 August 2024.

Photo by laura adai on Unsplash

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.

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