Saturday, 24 March 2012

Copyright And Design: Five Things You Need To Know

So you've got an idea for a great new logo, infographic, name, or tagline for an online or offline project. Are you ready to deal with the fallout if you are accused of copyright infringement?

It's a horrible thought, but the extent of the reach of copyright has grown to the extent that it's becoming unsustainable. Even those agencies and government bodies that are usually in favour of maximalism have begun to realise that the laws we have at the moment — and the ones being discussed in various forums — are in urgent need of reform.

It's encouraging to note that HADOPI, France's notoriously fierce IP attack dog, has issued a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject, according to blogger Glyn Moody in an article on Techdirt. This is hot on the heels of the recent UK government's consultation on copyright (pdf), which devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others. Even the TPP is being debated on the issue.

Until the Digital Economy Act and all the other laws and treaties that shackle innovators are reformed or repealed, you need to be aware of these five factors before you undertake any creative work or you risk being sued for intellectual property infringement.

1. You're probably infringing someone's copyright or trademark

An unregistered design is only infringed by copying. Independently created designs are not infringements. - UK Copyright Service

Although they haven't explicitly said so, you should make reasonable checks to ensure you're not infringing someone's trademark or copyright. Copyright is supposed to protect you from copycats by providing you with the legal right to sue infringers, and if you have registered your design, you get added protection by being able to prove your case more strongly. Here's the problem: you can patent or trademark an idea, and chances are, someone else already thought of something similar to you so theoretically they can come after you if the design elements you use are similar enough. There is little, if any, protection for people who incidentally come up with an idea similar to someone else's. The court verdict linked above declares that the items in the disputed photo were similar enough to be judged as infringing. This is a dangerous legal precedent and a slippery slope that could lead to massive legal action by bigger companies against sole traders like me. Wear away at the safety areas enough, and the dark aqua I use for my logo will become an infringement. Be aware of this, and if you're inspired by someone else's artwork, be careful to make it different enough that it's not a derivative.

2. Famous images and symbols may be copyright

The con man Stan Freeman insisted that I use the Smiley Face as the logo for his website and business cards. I refused because I happen to know that

French journalist Franklin Loufrani registered the iconic smiley face image as a trademark in France in 1971, and he created "The Smiley Licensing Corporation, Ltd." to sell, license, and advertise the smiley face image in the United Kingdom and Europe. In 2001 the name of Loufrani's company was changed to SmileyWorld, which has managed to register the symbol in over 100 countries (not including the USA) for 25 classes of goods and services. -Wikipedia

As a responsible designer, I wanted to protect him from the possible legal impact of his decision and talked him out of it. A certain other design firm didn't. Be aware that even if it's public domain in the US, it ain't over here and if you use it for commercial purposes, you could find yourself hauled into court.

3. Copyright trolls can drag you to court over IP even if you have no case to answer

It's extortion, but it works like this: you get accused of IP infringement, and without any proof being required, you have to pay £20 per accusation. Welcome to DEA UK. It's a vile, unfair law and it needs to be repealed. I haven't see any cases of this happening over here but it's a massive problem in the US. See what happened to Fark. They stood up to the trolls, but IP cases require lawyers to fight them and they're so expensive that it's usually easier to settle and just hope they go away. Good luck with that. If you should become the target of an unfounded accusation, contact EFF and the Internet Freedom Movement. We will publicise your case and do whatever we can to help.

4. You can't claim you didn't know something was copyright

The chances of your creating a clone of someone else's work without realising are pretty slim. That said, if it's similar enough, IP lawyers will drag you to court. One part of the case linked is that the copyright holders were able to demonstrate that the people they took to court over pictures of a bus picked out in red against a black and white photo of the Houses of Parliament had prior knowledge of the image they were not quite copying. Even the judge acknowledged that the alleged infringer had gone out of his way to avoid actually copying the image itself. It was judged as infringing on the basis of its being an unlicensed derivative work, so be very careful of what you do with works you are inspired by.

5. Trademarks protect names, colours, and ideas

While it's true that you can't own an idea, words, or colours via copyright, you can own them via trademarking. Facebook is trademarking the word "book," their F logo, and other words and images associated with their name. In law, as it stands, you can use words and images as long as you're not trying to impersonate another entity, but IP trolling is broadening case law to allow companies to sue over letters and names.

Thankfully, as I said earlier, the powers that be are beginning to see how patently (sorry!) ridiculous this is and are considering injecting some common sense into the laws on IP. Meanwhile, be careful when a client asks you to do any work for them and educate yourself on IP law or you are likely to fall foul of it sooner or later.

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