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    Don’t Be a Victim of Copying

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    As shown in the examples above, when a copied work is so similar in its form and structure and merely displays minor differences in shapes or color palate, improper copying can usually be demonstrated.

    “Immature poets imitate; mature poets steal; bad poets deface what they take…” —T.S. Elliot

    Truly creative work is hard won and represents the synthesis of deep personal exploration, knowledge, skill and experience. It’s no wonder then that designers who find their work copied are angry. What’s more, the “artist” who copies another’s work commits a crime against not one but two parties: stealing from a designer who is absent or helpless, the basest form of stealing, and cheating a client who is seeking something pure and original. The law provides protection against this offense, but like most trips to a new place, it requires you learn a few local customs and words of a new language to get the most from it.

    Copyright law is not equipped to understand or accommodate the world of nuances that designers and artists live in. However, the law does make a distinction between being influenced by a work or an idea and actual copying. Most designers have difficulty understanding this point, and its importance in seeking a remedy cannot be emphasized enough. Stated briefly, copyright law only prohibits actual copying and provides rights to authors to control how their work may be used as the basis for new work. Under copyright law, such new work is referred to as a derivative work, and if one doesn’t have rights in the original work, either as the author or with permission from the author, one cannot have rights in a derivative work. The artist or designer who copies has no rights under copyright law. More important, designers who engage in such a practice end up exposing their clients to potential legal action, possibly even monetary liability. 

    As noted earlier, copyright law is constructed to permit the free exchange of ideas, and in the case of design and the visual arts ideation is often expressed in a “style.” It is difficult to prove unauthorized copying when an accused work merely evinces a similarity of style or creates a similar visual impression without the actual copying of a preexisting work. Although that does not mean that when a copied work is so similar in its form and structure, and merely displays minor differences in shapes or color palate, improper copying cannot be proven. The practical issue for a designer is the cost of pursuing such an allegation. All designers and artists know and understand that the history of design is bursting with examples of works influenced by or based upon earlier created works. The law accounts for these phenomena and requires the demonstration of copying for copyright infringement to be proven. Nevertheless designers have several options to help reduce the likelihood that their works will be copied.

    First, whenever possible register the copyright for your work. The process is somewhat technical and will be discussed more fully in a future post. An application to register your copyright may be filed using paper forms or directly online with the U.S. Copyright at http://www.copyright.gov/eco/. The filing fee is merely $35 and it is one of the best deals the government offers since multiple works can be registered in one application.

    Second, when clients tell you that they “want it to look just like this,” educate them as to the value of original design work and the pitfalls of copying.

    Third, keep records of your work; it makes it much easier to prove the originality of your particular creative process when trying to prove copying. Keeping a record of your ideation and creation process in digital form has become very inexpensive. It is the most tangible benefit of the cloud. 

    Finally, whenever possible place a copyright notice on your work. Under federal law, you have a copyright when the work is created, but registering that work is the copyright equivalent to a first-class seat upgrade: You get extra rights that make pursuing unauthorized copying much easier.

    About the Author: 

    Frank Martinez, a former designer and Design Patent Examiner, founded The Martinez Group PLLC in 2008. Frank earned a BFA in Fine Art from Pratt Institute in New York. He served as Production Director for Landor Associates in New York prior to attending law school. Frank, after having been a Design Patent Examiner at the U.S. Patent and Trademark Office, has worked closely with design professionals for many years in both design and legal capacities. Frank Martinez by reason of his experiences understands firsthand the business and intellectual property issues faced by designers. Frank is also an Adjunct Professor at The School of Visual Art,  in the Designer as Entrepreneur MFA Design Program, where he teaches Intellectual Property and the Law.

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