The work of a designer comes under the general heading of intellectual property. Just as people have ordinary property which they own (house, car, furniture, DVD player,…) they can also have intellectual property which includes art work, original music, literature or suitably documented ideas. Professional designers earn an income from their intellectual property and they need legal protection so that others cannot simply use their work without paying for it. In other words steal the designer's intellectual property.
There are four broad areas of legislation which can be used to protect the ownership of creative work, and each can apply to a design, depending on the circumstances. These are copyright, patents, trademarks and designs protection law. Creative commons licensing is sometimes used as an alternative to copyright.
Intellectual property law has become very complex and many lawyers have built their career specialising in just this area of the legal code. This document will only cover this topic in the most general terms. For further information on Australian law, refer in the first instance to the Australian Copyright Council web site.
Copyright
Copyright is the most common way of protecting the ownership of graphic design work. Copyright applies to any art, musical or literary work, and is an automatic right given to the creator of the work. It is not necessary to apply for copyright. In order to exercise their copyright a designer just needs to establish that they were the original creator of the work. Copyright does expire and in Australia it generally expires 70 years after the death of the original author/creator (or in some circumstances 70 years after the original publication). When copyright expires the work enters the public domain.
The creator of a work generally adds a copyright notice to their work. This doesn't have any effect on the ownership of the copyright, but it does indicate that the creator intends to defend their copyright and makes it clear who the copyright owner is so they can be contacted. Copyright notices vary, but they always contain the copyright symbol followed by the owner of the copyright, the date and information about how the copyright will be exercised.
e.g.
© Grant MacDonald (Don College) 2013 All Rights Reserved. No part of this publication may be reproduced without express consent.
If a designer believes that their copyright has been breached they can, depending on the circumstances, ask that the copies be destroyed, or that appropriate credit be given, or they can initiate legal action through the civil courts and sue for loss of income and/or damages.
Copyright law has struggled to keep up with modern technology such as photocopiers, scanners and the internet and the law has had to change under the influence of technological change. Modern copyright law has become complex as a result. For example loading a web page involves making an electronic copy of the document, so copyright law has to be written to allow this, but it does not allow for the web page to be printed or copied and distributed in that form.
Some sources state that it is a breach of copyright to take an image from a web page and embed it with an inline link in another electronic document. This is a situation where the law is still being developed. It could technically be a breach of copyright law for content to be embedded in a web page, even though it is only the link to the content which is being copied. This could make Google image searches a breach of copyright, and services like Facebook and online blogs make extensive use of embedding (inline linking). Recent court cases in the USA have ruled that since there has not been another copy of the electronic image made on a server then embedding content using links is not a breach of copyright.1 Except for the few cases where Don College owns the copyright, this wiki has a policy of only using embedded images and content.
If a designer wishes to use copyright material they should, in the first instance, contact the copyright owner(s). The owner may give permission to use the work under certain conditions, or they may ask for a fee, or they might refuse permission, at their discretion.
In the graphic design world it is common for designers to purchase galleries of images, or design assets. In this case a designer is purchasing permission to use the image as part of their work. An example is where a designer might be modelling the interior of a room and they purchase a gallery of furniture assets to save modelling their own furniture. (Obviously the ownership of a gallery is not transferable. It can't be sold on or given to others to use.)
Creative commons license
There are situations where a creator would like to distribute their work widely without financial gain, but they would still like to have their ownership acknowledged. This is common in the academic world and on the internet. In this situation an author or designer might choose to exercise a creative commons license as an alternative to copyright. Broadly speaking a creative commons license allows anyone copy and make use of a work, provided the work is attributed to the original creator, and the same license conditions apply to the resulting work. This wiki is published under a creative commons license, to see the details of this license click here.
Public domain
Public domain work is not covered by copyright and is free to publish or use by anyone. Works enter the public domain in a number or ways.
- The author/creator might relinquish their copyright and place the work in the public domain.
- The copyright might have expired.
- Some work might be excluded from copyright under the copyright laws of that country.
Trademarks
Trademark legislation is different to copyright. Trademark legislation is designed to protect company logos, names and trade marks. This prevents others from using a trademark to impersonate a company. Unlike copyright legislation, a trademark needs to be registered and a fee paid to get protection under this legislation. The registering authority is IP Australia.
Designs law
This legislation may be used to protect a design that does not fall under copyright legislation, for example items designed for a particular function. This legislation can be used to protect the appearance or shape of an article but not how it operates. For instance the appearance of an electric jug can be protected under this legislation. To be protected a design needs to be registered in with IP Australia and a fee paid.
Patents
Patent law is for protecting inventions or processes. A patent needs to be applied and paid for for with IP Australia and will only be granted if it satisfies the criteria for a new patent, specifically that it is new, innovative and useful.
Copyright flowchart
This link will bring up a flowchart taking you through the copyright process and answering the question "can I use that?"
http://selectedreads.com/wp-content/uploads/2014/06/Copyright-Flowchart.jpg?w=1600&h=5220
Summary
There is a range of legislation to protect the intellectual property of designers. The law which most often applies to graphic designers is copyright law. Copyright is an automatic right given to the publisher/creator of a work of art, music or literature. The creator can relinquish this right or revert to a creative commons license if they wish.
Trademarks legislation protects company logos, and these must be registered to get this protection.
Design law and Patents also need registration and apply to objects and inventions respectively.