The purpose of this guide is to provide businesses and artists with a basic understanding of their intellectual property (IP) rights in order to enhance their chance of business success. Each relevant IP right is considered, as well as their advantages and disadvantages, and pitfalls to watch out for.
In this IP Guide, visual arts are deemed to be creations of visual works such as drawings, paintings, photographs, sculptures or print making. The discipline includes fine arts as well as applied or decorative arts and crafts. In some contexts, it has been extended to include art created by digital media.
What are IP rights?
A visual artist creates a piece of art. This is a piece of physical property of value which can be sold. However there is also a hidden value. There is an intangible element to the product, such as the thought process and skill that went into the design, the unique combination and arrangement of shapes, textures and textiles and so on. These intangible properties are known as IP rights and are also valuable.
For individuals working in the visual arts, the most relevant IP rights are:
- Trade marks
- Design rights
- Confidentiality agreements
A piece of art may qualify for one or more of these IP rights, and it is always beneficial to consider each one in turn.
Copyright protects original pieces of work from being copied without permission. The work must be the result of a person’s skill, effort and judgement. It cannot be something that already exists.
‘What is worth copying is worth protecting’
No protection is given when the creative thought is still in the creator’s mind, so it needs to be put in some fixed medium; for example, paper or film.
The initial owner of the copyright is the author. However there’s an exception to every rule. This can occur in an employee situation. Unless a contract of employment states otherwise, an employer owns the copyright to anything created by the employee in the course of their employment.
By owning the copyright, the owner has exclusive rights to prevent or allow others to:
- copy the work;
- perform the work;
- make the work available to the public through broadcasting or recordings; or
- make an adaption of the work.
Due to the nature of copyright being automatically attributed, it may be difficult to prove when it began and ownership. Keeping copies of drafts and other related material is useful evidence to prove you are the author. There are several copyright registers in the UK and you need to make yourself fully aware of all terms and conditions before registering, if you decide to do so. Another useful, but not compulsory, method may be to affix a copyright symbol next to your name.
The length of copyright depends on the type of work. Generally, copyright in artistic work lasts for the life of the author plus 70 years.
A trade mark is a mark or symbol used to identify the makers of goods or services. These can be brand names or logos or a combination of both… but not the product itself. The mark needs to be distinctive in order to be registrable as a trade mark. As a visual artist you may either be commissioned to design a trade mark, or have one to protect your own products. If you are commissioned to provide a trade mark it is strongly advised to do a pre-design trade mark search to ensure that your idea is not already registered.
A trade mark can be applied for and registered. Once it is registered you cannot make changes to it, or add goods and services without notifying the registering authority.
A trade mark may be refused registration if it is not distinctive enough or capable of distinguishing goods. For example, it may be terminology that is commonly used in the industry to indicate quality, geographical origin or actions, etc. It may also be refused because it is contrary to public policy, accepted principles of morality or deceptive (ie implying one thing but actually representing something else); for example, national flags, emblems, representations of the Royal family may not be used. Swear words, offensive shapes or illegal actions, for example promoting the sale of drugs may also be refused. Finally it may be refused because it is too similar to an existing trade mark.
The initial registration of a trade mark lasts for 10 years. This may be renewed again and again for a period of 10 years every time.
If registration is not something you are in a position to do straight away, your mark may still be protected against improper use by others by claiming the infringement of ‘passing off in court. In order to do this you need to prove:
- The mark is yours;
- You have built up a reputation in the mark; and
- You have been harmed in some way by the other person’s use of the mark.
Please obtain legal advice if you decide to take this option.
There are four types of design IP rights available for businesses operating in the UK:
- UK unregistered design (unregistered design)
- UK registered design (registered design)
- Registered Community Design (RCD)
- Unregistered Community design (UCD)
Sometimes a design may be protected under more than one of these.
The unregistered design right is an automatic right and protects any aspect of the shape of an article (whether internal or external); for example, graphic elements of product packaging. It is protected for 15 years from the end of the calendar year when the design was first created, or if sold or hired within the first five years, for 10 years.
The registered design must be registered and is available to shapes or configurations applied to an article by any industrial process; for example, jewellery making. When registering, you must show the design is:
- new (ie not identical to an existing design); and
- has an individual character.
Certain designs cannot be registered. These are designs that relate to how a product functions, part of the product not normally visible, and designs that are contrary to public policy or acceptable standards of morality. Designs may be renewed every five years for a maximum of 25 years subsequent to a renewal fee.
A registered design differs from an unregistered design right in that it prevents others from imitiating the design whether or not they came up with the design independently.
An RCD is similar to a UK registered design but covers the entire EU and is more expensive. It is registered at the Office for Harmonisation of the Internal Market (OHIM). The UCD is an automatic right which lasts three years from the date the design is first made available to the public.
Due to the fast changing nature of certain industries and the length of some registration processes, in certain situations an unregistered design may be preferable to a registered design.
If a design is technically inventive and innovatively functional it may qualify for a patent. This could provide up to 20 years protection. As visual arts are mainly aesthetic in nature and not technical.
You have used skill and created a piece of visual art. Now, how can you establish and grow your business? Other businesses may be able to assist with their services, but negotiations should only be undertaken after the above-mentioned IP protection is in place so as to protect your art. You may wish to put in place confidentiality agreements or non-disclosure agreements (NDAs). Whenever you talk about your work, you need to be confident that someone isn’t listening only to walk away and use your idea. Most businesses are used to seeing NDAs and these should be put in place before discussions begin.
Putting it all together
At a bare minimum, visual artists should ensure that the automatic rights mentioned above are protected. Although automatically attributed, if they are infringed these can be the trickiest to prove. Methods used to do this include keeping a history trail of evidence as to when the piece of work was created (eg posting a sealed copy to yourself and keeping it unopened), keeping a log of all who came in contact with the ideas and when.
Some benefits to owning IP rights are licensing or merchandising agreements. A licence agreement would allow someone else to use your idea, and design and manufacture your product; for example, a jewellery design. This is usually done for a percentage of the profits in return. Similarly a merchandise agreement allows the temporary use of your mark on other unrelated goods, as with Star Wars toys.
If you have been commissioned to create a unique piece of work then the ownership of IP rights might change. Usually, the designer will initially develop more than one idea for this. These ideas are reviewed and a couple are developed further. Very often a contract is used to transfer ideas and all IP rights to the person commissioning the work in exchange for the design fee.
There is more to visual arts than the art or craft. By understanding and identifying the IP rights an artist may protect their piece of work, their reputation and their good name.
Content supplied by Tanya Layng (non-practising solicitor and LawWorks Choices volunteer). Photo credit: Seeming Lee
Image: Rupert Whale: www.rupertwhale.com