In every issue of MOYO magazine we invite Dids Macdonald, CEO and Co-Founder of Anti-Copying in Design (ACID) to answer your Intellectual Property questions in our 'Ask ACID' section!
The information provided on this page and in MOYO magazine does not provide a complete statement of the present law and you should always take legal advice in respect of your particular circumstances.
Questions from MOYO Issue 9
Q. What implications might there be for designers now the UK is leaving the EU? Will anything change from a copyright perspective?
A. For the time being there is no need to take any action in relation to EU registered trade marks. EU trade marks will continue to be protected in the UK until the date of exit and they can they be re-registered as UK trade marks thereafter.
There is a chance that protection for EU registered designs will eventually cease in the UK. This is because designs…
Q. Please can you explain the difference between a ® and ™ symbol?
A. The ® symbol refers to a registered trade mark and under UK law it is illegal to use it unless you do have a registered trade mark.
The TM symbol is merely used to show that you are using the name or logo as a trade mark and it has no legal meaning…
Q. I have my business name registered and protected but I have done nothing for my logo yet. When licensing to companies that allow you to put your own logo on the product, I would assume that logo would need to be copyrighted, or trade marked, or both. Can you clarify please? Also, is the process for protecting my logo different in the UK and the US?
A. In the UK, you can potentially protect a name or a logo as a registered trade mark by filing an application with the Intellectual Property Office. The mark needs to be distinctive enough to act as a badge of origin of goods or services and it must not be confusingly similar to an existing registered trade mark…
Q. When creating a digital moodboard is it ok to use images I’ve downloaded from the Internet or scanned in from magazines? And if so, should I credit them?
A. No! You should never download images from the Internet or scan in images from publications because in almost all cases you will infringe somebody’s copyright (unless you have checked a website’s terms and conditions and they state that images maybe downloaded freely or that they have no copyright restrictions)…
Q. When designing infographics for clients what are the advertising rules on stating claims, like “I’m this or that…” and including statistics, like, “My website is seen by over 100,000 unique visitors…”? Should I ask my client to prove these things and could I get into trouble if their claims turn out to be false?
A. A graphic designer is not obliged to check that what a client says about themselves is true. If your client wishes to make false representations about themselves, their company, or its products, it is them who risks falling foul of advertising laws…
Questions from MOYO Issue 8
Q. I’d love to design greetings cards or posters inspired by books or movies, like Star Wars. If I included a quote in my own typography and drew characters like C-3PO and R2-D2 by hand in my own style would I be infringing copyright? Would my reinterpretation be illegal? And could I sell my work?
A. Whenever you wish to use a copyright work as a basis for your own design you should always ask permission of the copyright holder. Assuming the work is still in term for copyright, you could be infringing if you reproduce it. An infringement will occur if the whole or a substantial part of the work is reproduced, in any material form, without the copyright owner’s permission…
Q. I recently created some cool geometric designs and motifs while playing around in Illustrator but it wouldn’t surprise me if someone else has already come up with similar things. Am I right in thinking that geometric shapes are impossible to copyright?
A. Geometric shapes can fall under the ‘generic’ heading which means that they their design cannot be claimed by an individual. However, when geometric shapes become part of a new and original design, there’s a chance that you’ll have created your own intellectual property. While you may have created rights in your new design you can’t stop anyone else using geometric shapes…
Q. How do you know if you are copying someone’s work or infringing copyright in a fairly simple design, for instance a coordinating pattern like polka dots, which has been done many times before? How could you claim a design like this as your own?
A. This is another example of using generic material, which may limit the intellectual property created within a design. As explained above, there is nothing to stop someone using a generic item, but the design should be set out in an original way to ensure there is less risk of infringing someone else’s copyright…
Q. It can be tricky to take photos of certain motifs, like animals, so I typically look to source reference online or in books and then interpret the image in my own way. How does copyright work in this instance?
A. Photographs are specifically protected as artistic works pursuant to the Copyright Designs and Patents Act 1988 which means that an infringement will occur if the whole or a substantial part of the photograph is reproduced, in any material form, without the copyright owner’s permission. It’s important to note that the original work could just have influenced a very small part of the new design, the key question is whether this constitutes using ‘a substantial’ part of the earlier work.
Q. When a company buys a design outright, does this mean they own the copyright? For example, if I sold one of my designs to a company, would I still be able to use it on products that I manufacture and sell myself.
This question highlights why it’s so important to set out terms and conditions of your business from the very start. It also raises the important issue of licence agreements whereby you can choose to maintain ownership of your design but license or ‘rent‘ it out to other companies. In the terms of the licence agreement you can dictate specifics, such as the length of the rental term, the territories where products can be sold and also how your design can be used…
Q. When starting up on your own when would you recommend dealing with things like copyrighting your work, trade marking, and registering your business and as self-employed, etc.?
To ensure that your designs are protected, we advise registering with Companies House if your company is to be Limited, and consider registering your trade mark or brand names before you start your business. However many small businesses start trading without doing these things…
Q. I can’t decide what to call my surface pattern design company. Do you have any advice about choosing and registering a name and is it a good idea to use your own name as a brand?
When choosing a business name it is best to check out registered trade marks first to ensure that you do not use an existing registered trade mark or brand name. You can do this at the UKIPO and OHIM websites in the same way that you can check for registered designs. You can also arrange official searches of these registered trade marks through one of ACID’s legal affiliate law firms…
Q. I’ve been advised not to post my patterns on Pinterest and social media sites in case other companies copy them and get them into the market before I do. If I was an established designer with patterns and products out there I wouldn’t be as worried as people would recognise my style and know that I own the original work. However I’m just starting to build my brand so I do need to get my work out there as much as possible. How can I avoid being ripped off?
A. This is more about finding a practical solution than offering legal advice. These days all websites can be built to include ‘copy protection’ so it’s a good idea to discuss this with your web developer or IT support team.If you don’t have copy protection, consider water-marking your pictures and make sure you don’t allow people to download anything from your site without leaving their details…
Q. Can I make work based on a photo/s I’ve found on the Internet? I know it is illegal to reproduce the photo itself but could I use an element of it (i.e. a flower, a leaf, or even the composition) and make sketches and motifs from it?
A. Some people argue that anyone who uploads material to the Internet is effectively consenting to the subsequent use of that material by others. However, the default position is that by downloading a picture or a video from a website, you are making a copy of that work on your own computer. Making a copy includes storing it in an electronic form. On that basis the original work is protected by copyright and therefore you would be infringing that copyright.
Questions from MOYO Issue 7
Q. When signing and dating your original designs, what’s to stop someone replicating your work, putting an earlier date on theirs and then claiming they designed it first?
A. There was a case recently where someone actually did that. They ended up in prison. It’s very difficult to get away with this and in our experience, very rare. It’s not just a matter of signing and dating, although, of course, that’s very important. There will be other evidence you can provide to prove that you own your designs, for example receipts from order books…
Q. What are the guidelines regarding the use of vintage fabric, old stamps or newsprint etc as collage background layers in artwork?
A. It depends how you use them. If you’ve bought the physical fabric or newspaper then you aren’t making a copy of anything, you’re just using your property to make a collage. If you’re making digital images then that could be copyright infringement. It’s always best…
Q. When can items be considered vintage / royalty free?
A. 70 years after the author of the copyright work died.
Q. How and when should you use the copyright symbol on your artwork?
A. A good example would be “© ACID Ltd 2014”. You use the symbol, your name and then the year.
Q. Are there any tell-tale signs that new or inexperienced designers should watch out for when they receive enquiries, either through public portfolio sites or through their personal website, that indicate the person might be a fraud? Do most professional people in the industry provide infromation on who theyare / what they do when they first contact someone?
A. Be ‘IP savvy’, watch your competitors and watch the market generally. It’s a relatively small world within specific markets on the internet. If you are striking up an email conversation with someone, always check their credentials to see if they’re bona fide…
Q. Do you have to register your design with the right authorities in your country before you can correctly use copyright on your artwork? And what happens when showing designs to someone in another country – do the same rules apply?
A. It isn’t a requirement of copyright that it is registered. Some countries encourage this, such as the USA where copyright laws are different to the UK. The bottom line is that if someone copies your copyright work without your permission then that is an act of infringement.
If you have an IP question for Dids, visit our Get involved page for details.
Check out these pages in earlier issues of MOYO magazine to see even more questions and answers:
We also share a fantastic and insightful interview with Dids in Module 2: Creating your professional identity.
Dids Macdonald – CEO and Co-Founder of ACID
Originally a partner in a Chelsea interior design company and then a designer maker, Dids Macdonald started Anti-Copying in Design (ACID) because her work was copied so much. ACID aims are to create a safe trading environment where original design can be protected, valued and respected. The organisation focuses on turning to the creation of a safe trading portal to be a conduit for original design to attract design buyers. ACID champions independent design, and campaigns for respect for IP and opportunities for growth and job security.