Copyright and design registration can protect your artistic works and assist with ensuring that others don’t copy your design’s visual features such as shapes, patterns and configuration. There are a number of differences between copyright and design protection, and it’s important to understand these to determine the appropriate type of protection for your work.
Getting Protection Over Your Work
Design protection and copyright can attach to similar types of work or designs, but the process through which it comes into force is different.
Copyright is an automatic right which attaches to original pieces of work where the creator can be clearly identified. It doesn’t require any registration or certification process, nor does it involve payment of any fees.
On the other hand, design rights are granted through a formal registration process. An application for design registration will be examined along with the design itself, and approved by the Registrar. Unlike copyright which is free, design registration requires the creator to pay a fee.
The Period of Protection
Copyright protection typically lasts longer than design protection. The general rule is that copyright protections lasts for 70 years beyond the author’s lifetime, whereas design protection is valid for 10 years from the date of application.
In Lucasfilm Ltd v Ainsworth, Lucasfilm tried to argue that copyright protected the Stormtrooper helmets used in the Star Wars film to prevent Ainsworth from recreating the helmets and selling them. The courts found that the helmets did not attract copyright, but could have been protected by design, which would have expired.
The Nature of the Protection
Copyright, as the name suggests, focusses on protecting a creator from others ‘copying’ their work. To claim copyright infringement and enforce copyright, the creator and owner of the work needs to show that the alleged infringer did, in fact, copy the original work. If on the other hand, the alleged infringer had come up with the same work independently, copyright would not be enforceable.
Design protection in this instance is more beneficial than copyright. It protects the owner against another person creating a similar or identical design, even in overall impression, regardless of whether it was inspired by the registered design or created independently. In this way, design registration offers a creator stronger protection of his or her artistic works.
For this reason, people usually register designs over work that has an industrial or commercial purpose such as jewellery, textiles or furniture. It is especially important to consider registering a design where the creator intends to make multiple copies as in the case of manufacturing, wholesale or retail.
Design registration is limited in that it only protects the appearance of the work and not the function. If you want to protect the function, it may need another type of intellectual property right – a patent. A design may be registered even if it has a function associated with it, but the function itself is not protected unless a patent is registered.
Questions about protecting your artistic work through copyright or design registration? Ask our intellectual property lawyers.