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Legal & IP Frameworks

Comparing different case studies, media use & equity ownership

GDE730 Week 3

Research and analyse naming and copyright issues, the basic pitfalls of illegal practice and the common areas of the copyright process, and the ethical and legal factors most frequently affecting graphic designers.

Research Analysis

As a designer I need to be careful to understand my liability and responsibility in relation to my work and that of other creatives.  The realms of these fall under the following headings:

  • Intellectual Property Rights (Copyright & Industrial Property)

  • Social Domains

  • Image Use

  • Rights & capture of images

Intellectual Property Rights

The World Trade Organisation defines IP rights as; "the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time".  They go on to divide IP in to two distinct categories, Copyright and Industrial Property.

Industrial property relates to trademarks and patents.  These must be formally applied for and are mostly used for developing products or scientific research where protection is needed before and after it is released in to the marketplace.  Patents last for 20 years.  Furthermore, a designer can apply to register a design with the Intellectual Property Office (UK).  This affords the designer the legal right to stop others using their work without their permission, it must be renewed every 5 years and lasts for 25 years.  A creative then has the facility to license all or part of their design to others, such as clients.  It is worth noting that the benefit here is that the designer still retains copyright over their work unless they sell the rights to another party.

Copyright or unregistered design rights are automatic and apply throughout the design process to completion.  In contrast, copyrights are harder to enforce and do not apply to surface pattern design, these need to be registered.   Many works are stamped by their owners as copyrighted and any honest creative will respect that, however there are profiteering companies who will not.  A designer who discovers a direct copy infringement of their work has recourse to ask the company to cease and desist using it.  Costly and protracted  arguments can follow as the accused company/individual claims the validity of the design as 'independent creation'.  Such claims that are made in a court of law require documentary evidence to prove originality.  This means that every designer should be maintaining such records to protect themselves from accusation and their work from plagiarism.

When working with a client it is very important to be clear on who owns the copyrights to your designs following the completion of the project and put this in writing - a contract.  This can be a good bargaining tool to negotiate a set fee for these rights of use.  Furthermore, designers should be clear who is responsible for checking that your designs do not breach another's IPO, you could fall fowl if you are deemed liable and your client is sued by another. 

Social Domains

As many of our designs are now in digital image format and placed on a variety of global social digital domains, we are open to exposure and governed by different IP rights across the world.  This complicates matters of protection, copyright and responsibility.  Furthermore, the legislation in jurisdictions can change, for example, the Brexit deal now means that from January 2021 UK protections no longer apply in Europe.   IP protection in Europe will now require an application to the European Union Intellectual Property Office.

Social media and news sites are posting more and more examples of alleged infringement of property rights.  Designers with a mass of followers are finding themselves alerted to plagiarism of their work by these supportive devotees.  A catch 22 situation has taken affect whereby designers wanting to promote and market themselves online are receiving positive feedback from the public, sales and admirers.  Large corporations are monitoring social media and using this research to develop products they know will be popular with the masses and they produce identical products, bringing them to market very quickly at very lost cost.

The non profit organisation, Anti Copying in Design (ACID) are on a mission to change these underhand actions and support the underdog designer by lobbying for change and highlighting the plight of design theft.  Their strategy is one of strength in numbers but ultimately they want resolutions to be mitigated not litigated.  They have experience to advise designers how to avoid infringements of others work, have a mutually respectful space to share ideas on their website and support small businesses to be heard.

The advancement of digital communication has given rise to armies of social media activists who are more than happy to call out those that rip off others, especially if it's a big corporation.  Educated consumers have realised the extent of their collective power, championing the cause of the downtrodden and threatening the stability of the big brands.  Perhaps if this loud social voice continues to name and shame, we might see a change in attitude from these businesses.  They may begin to see the small designer as a potential asset to them instead of stealing their ideas and risking their reputation in the process.  Consumers have the ultimate power here to effect change and the discerning growing generations are certainly showing a dislike for organisations they can't trust.  

Image Use

To legally use an image it must be free of copyright or licensed to you for use.  There are many resource banks that hold images that can be used free (with the photographer/artist credited) or at a cost.  Google and other search engines, also allow for image search Creative Commons or Commercial Commons Licensed resources.   Alternatively you can approach a photographer or artist directly, to use an image with their permission.  It would be wise to get this agreement in writing. 

 

You can also sell the rights of ownership in part or wholly to another party.  This is called copyright assignment and there are 3 variations:

  1. Automatic assignment - this is where ownership transfers automatically under an insolvency or inheritance transaction.

  2. Elective assignment - the copyright owner chooses to transfer their rights, either by sale or gift.  (MUST be put in writing & signed)

  3. Partial assignment - part of your copyright is assigned, for e.g. the right to copy during publishing

Licensing by contrast is where overall rights of ownership are maintained, but your give permission for another party to exercise SOME of those rights without fear of infringement.

It is worth noting that an owner's moral rights to the work are not transferred.  This means that you must be acknowledged as the original creator of the works.  however you may choose to waive these rights and you can do so in writing within a transfer of ownership contract. 

Image Capture

There are no laws that exist to stop a person from taking photos in a public place and this includes people/children.  However this does not preclude someone from taking you to civil court for taking a photo of them without their permission, normally this would be fought under the rights to privacy act.  There are many examples of paparazzi taking long range photographs of celebrities in their private domains, whilst the photograph stands in a public space, legally pressing the button.   

 

Exceptions to this include child pornography, illegal under the Protection of Children Act 1978, and in a court of law.  There is a preclusion for Trafalgar Square, Parliament Square, Royal Parks and National Trust Land, whereby a photographer would need to seek permission from the London Mayor or the Trustees.

Image Ownership

The photographer/artist owns the copyright to images they take/create and for 70 (min 50) years after their death (25 for photographs).  Permission to use would be required from the family of the deceased.  However if the photographer was taking a photo/artist creating work whilst carrying out their duties of employment, the employer would then own the rights to those images.  This is something to remember if seeking permission to use a copyrighted photo/image , the photographer/artist may not be the owner, you might have to approach their employer.

Orphan Works

Orphan works, as the name suggests, are works without owners.  In cases where the owner is unknown or cannot be found, a person can apply for and Orphan Works License from the Intellectual Property Office.  A diligent search for the owner must be undertaken before an application can be made, but if successful it will grant the applicant, & anyone else, 7 years commercial or non commercial use of the work  in the UK.

You will not need to make this application if the work is being used for educational purposes or if you can prove that the work's copyright has expired.  You will need to know who the original owner was and when they died.  70 years following their death should give you free rights, but remember to check if the copyright has passed to another through inheritance!

 

 

Workshop Challenge

'Communicate clearly the key areas that may infringe copyright or require IP protection in relation to a chosen designed object. Present as a designed piece, incorporating an image of the chosen design and a typographically designed list of key areas.'

For this challenge I wanted to look at a design that incorporated typography or lettering so that I could also investigate the rights of ownership and use of.  This is partly because I am investigating type communicated through textile medium as a side project at present.

I came across Russian fashion designer & photographer, Gosha Rubchinskiy and an infringement issue involving the fast fashion brand H&M.  It was a case highlighted by a keen social media follower and amplified by online cultural journalists, who developed a story around repeated alleged infringement of IP rights by large fast fashion chains like Zara and H&M.

The following are considerations Gosha Rubchinskiy needs to make in order to fully protect his work from intellectual property infringement or to avoid a claim against him in relation to his designs.

Copyright - Unregistered Rights - Gosha has automatic rights to all of his creative works under the un-registered copyright rules. 

 

Copyright - Registered Rights - He can also apply to register his designs which will cover: appearance, physical shape, configuration (or how different parts of a design are arranged together), & decoration.  This will make any legal recourse clearer but is not necessarily an indication of successful litigation.  This will also cost him, last for 25 years and need to be renewed after 5 years.  Decisions about registration ownership would have to be agreed upon for the collaborations Gosha undertakes, with special attention to what happens to ownership once the partnership concludes.

Patent - Gosha can apply to patent a product he has designed & made, but only if it is a new and innovative product. This does not apply to the example I have been looking at. 

Trademark - Trademarking his name written in Cyrillic language in specific typeface would be a sensible suggestion for Gosha and would cost him £170 (June 2021)  A trademark is a distinctive word, phrase, logo, picture, shape, sound, smell or colour, or even a combination of all these elements.  A trademark would protect his visual brand identified through his Cyrillic name.  It would prevent someone using the exact wording but would not stop the use of Cyrillic language/lettering, or the use of the typeface generally.

Interestingly Gosha Rubchinskiy' s name is registered and owned by Comme des Garçons.  Whilst I am unclear why this is, I wonder if he was supported by them in the early days of his career, or their collaboration resulted in the use of his name as the 'brand label'.  Either way, Gosha will not be able to use his own name until this registration expires or is not renewed after 5 years.  It may go some way to explain why his name, in the example collaboration with Adidas, was written in Cyrillic, to get around this potential infringement of Comme des Garçons rights.

In the Gosha t-shirt example we clearly see him using a direct reference to Alexander Rodchenko' s 1924 Constructivist Poster design.  Rodchenko died in 1956, however indications online are that an estate of the deceased owns the copyright for a number of his works.  Despite the clear inspiration behind his t-shirt design, Gosha has not explicitly used an exact copy of Rodchenko' s work and therefore, no infringement claim could be brought. 

My full analysis of the complexities of this case can be read in the designed article below.

https://blog.dennemeyer.com/which-trademark-symbol-should-i-use-and-when
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