In this two part article I’ve interviewed a retired senior partner of a Trademark and Patent law firm to get the skinny on Copyright and Trademarks. This attorney happens to be my father so I’m familiar with these laws and often find myself relating this kind of information to colleagues and clients. This article intends to outline the basic details of your rights and the rights of others while referring to real world examples. I am based in Australia so the specifics are native to Australian law but the core principles are common across the world. Should you need specific advice feel free to comment on this article; I’ll try to help and if I can’t I’ll direct you to where you can find it.
Part 1. Copyright
Could you outline what it means to have copyright over a design or other media?
Copyright subsists in any original literary, dramatic, musical or artistic work. Copyright, unlike patent trademark or design registrations, does not grant a monopoly to the owner but rather just protects against copying. In theory, someone could, quite independently without copying, produce a work identical to some other original work. If that were to occur, there would be no copyright infringement because there has been no copying. With the monopoly granted to patent, trademark and design registration owners, if a copy is made quite innocently then the person who copies is still liable. That is the subtle difference between these types of rights. One protects against copying and the others grant a monopoly. To secure patent, trademark and design registrations there is a registration procedure.
When does copyright occur? What I mean to say is does one need to apply for it or register for it?
Copyright comes into existence whenever an original literary, dramatic, musical or artistic work is brought into existence. There is no registration required to secure copyright in an original work. The Copyright Act 1968 (see this link for the Copyright Act and this link for the regulations which determine how the Copyright Act is administered) provides for how copyright is enforced, protected etc in Australia.
What can you do to protect your copyright? Say I see that someone has basically reproduced a website I made for a client; what should or could I do?
It is important that the person who produces a work is able to show that he in fact did so and that the work was original and wasn’t copied from elsewhere. For that reason, the person should keep copies of all version, drafts etc of the work. He should date them and keep a diary or any other evidence or documentation that might be useful in showing that the work was produced by him and when the work was undertaken to produce the artistic, literary, musical or dramatic work. This will greatly assist if action needs to be taken to enforce copyright in court.
To establish copyright infringement and success before a court one needs to show that the work which has been copied was original, that you own the work and that there has been copying and a substantial part of the work has been taken. As to what amounts to a “substantial part” of the work depends upon what part is taken, how much of the work is taken and how significant that part that is taken is to the whole of the work. A common misconception is that there is no copyright infringement if something is changed by more than 10%. Percentages do not have a bearing on whether or not there has been copyright infringement. As it was correctly pointed out in an earlier blog post (PoMo Vs Design), a copy of Mickey Mouse with one arm missing (i.e. 10% less) is still recognisable as Mickey Mouse and a substantial part of the work has been reproduced in that copy because the cartoon character is still recognisable and there is likely to be copyright infringement. In a recent case involving the group Men at Work, copyright infringement was found to have occurred by the copying of a flute riff from a musical work called “Kookaburra sits in the old gum tree” and substantial damages were awarded against the infringer.
The Men @ Work case was fought in the full Federal Court and all of the decisions issued along the way may be read at this url.
The website question you ask can perhaps be answered like this. The website builder will need to show that the work created was original, that he owns the copyright and that a substantial part of the work has been recreated.
Can copyright expire?
Copyright does have a finite term. Generally speaking, copyright in Australia lasts for 70 years after the death of the author of the work. The articles I emailed to you explain that this term is different for works that remained unpublished as at the author’s death, can depend upon the date on which the work was created (because the Copyright Act has undergone amendments) and is different for photographs and for works created for or owned by the Commonwealth.
If I take photos of an office team for their website who owns the copyright for those images? If I take a photo of a crowd do I need a release signed by everyone in the picture?
Copyright in relation to photographs is discussed quite well in the article entitled “Copyright for Photographers” published by the Copyright Agency Ltd (pdf). The question you ask about releases is an issue quite separate from copyright. All models in photographs should sign a release so that the owner of the copyright is able use the photos for the purpose for which the photos were taken and for the purpose stated in the release. This may well go to the heart of moral rights issues provided for in the Copyright Act 1968.
Did I mention that there is overlap between design registration and copyright?. A registered design is a monopoly granted under the Designs Act 2003 (see here for the Designs Act 2003 and this link for the Design Regulations 2004). Where an artistic work is produced in an article and that work is original then copyright would subsist in that work. If the intention is to reproduce that article industrially and industrial reproduction occurs then copyright under the Copyright Act 1968 would cease insofar as the application of the design to that article is concerned. To ensure that protection continues in such instances it is important rights for that artistic work is secured under the Designs Act 2003 for any article to which the work is applied before that industrial application occurs.
Here is a practical example of what I mean by this. Say you design a one off original chair that has particular appeal to the eye and all that you ever propose is for that chair to be displayed in a gallery. The chair is not mass produced industrially so copyright would subsist in that chair under the Copyright Act 1968. If unauthorised copying of the chair occurred you would be able to take action to enforce rights under the Copyright Act 1968. If it is your desire to mass produce the chair then before you do this, you should seek design registration for the chair under the Designs Act 2003. That would then afford you a monopoly to the chair under the Designs Act 2003. There would no longer be any rights to the chair under the Copyright Act. If there then is unauthorised reproduction of the chair you would be able sue for design infringement under the Designs Act 2003. Once the term of the monopoly granted to you by the Designs Act 2003 ceases, others would then be free to reproduce the chair.
If the artistic work were say a one off poster, copyright would subsist in the poster. If you decide to produce say wallpaper with repetitions of the poster on it then you should seek registration of the wallpaper under the Designs Act 2003. If you do not then copyright under the Copyright Act 1968 in the poster would not allow you to prevent its reproduction on wallpaper. The situation gets very complicated as you can see so it is best to get proper advice.
Conclusion of Part 1
This information should serve to help you when creating designs to be used as trademarks. For details relating to copyright please read part one of this blog article. I hope this has been helpful to you. Any questions or queries?…please post a comment.
