My first real experience with copyrighting was in February of last year. When I turned in my dissertation to the graduate school at the University of Louisiana, I had a number of fees – graduation costs, cap and gown costs, binding costs and, yes, a fee for copyrighting my magnum opus to protect my ideas from plagiarism. It was an exciting endeavor, really; 1) because I’m a dork and these sorts of things excite me and 2) because I liked the thought that my ideas – my hard work – were worthy enough to be protected from potential idea pirates.

Now, the reality is that there are not a whole lot of people out there (well, any people out there) interested in the connections between an obscure modern poet and 700-year-old oral traditions, but I got a real sense of accomplishment knowing that something I created was important enough to fit into the definition of copyrightable material. This protection, afforded me by United States Constitution Article 1, Section 8 (the actual federal law is codified in US code Title 17), covers a whole cadre of creativity. The concept of “creation” is at the heart of copyright law.

However, the purpose behind copyright is not to necessarily “protect” anything. Its major purpose is to ensure the progress of new ideas. It allows the creator time to develop and innovate his or her idea into something more useful and more complete. By granting the creator a temporary monopoly over the creation (a time which varies based on what the copyrightable material is and how it was created), copyright law provides an opportunity for revision. The only exception to this rule is if lifting a copyright is in the public interest.

In order to be worthy of copyright, the created material must meet all three of the following requirements:

Fixation—the work exists in a medium from which the author’s expression can be read, seen, or heard, either directly or by the aid of a machine;
Originality—the work owes its origin and independent creation to an author;
Minimal creativity—the work is the product of at least a minimal level of creativity.

And fits into one of the following categories:

Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works

Yes, just about anything can be covered (even obscure dissertations). Furthermore, the process to obtain a copyright is fairly easy. However, there is the potential for misunderstanding in regard to the who and the why of copyright law as it pertains to something like design work. Oftentimes, clients coming to a design firm are flummoxed by the idea that they won’t “have ownership” of their new brand once it’s created – it is, after all, their brand (photographers will recognize this conflict as they “own” the photographs of their clients, but the client owns copies of the prints, which cannot be replicated unless by or with the permission of the photographer … complicated, ain’t it).

More than likely, this confusion arises out of ignorance concerning the difference between copyright and trademark. Remember, copyright law protects the creator. In regard to the issue between designer and client, the brand, while FOR the client, is BY the designer. It’s the designer’s creation and is representative of the designer’s work. Therefore, ownership lies with the designer. It protects him or her from misuse or misrepresentation of a creative work. Without a copyright, a logo or tagline could be attributed to the client’s creation, pirated by another individual for possible misuse or otherwise altered and used for purposes contrary to its original intent. And, though not directly addressed by the US code, the law also protects the client from the same dangers. It ensures that the brand is sustained and protects the client from imitation or replication of his or her brand by competitors or others wishing to profit from that brand.

A trademark differs from a copyright in that the trademark is used by an individual, business or other legal entity to signify to consumers that a product or service, with which the trademark appears, originates from a unique source, and to distinguish its products or services from those of other entities. In other words, the copyright protects the brand design while the trademark protects the brand and its products and services. A client may not own the design of the brand, but he or she can apply for a trademark to protect the brand – its name, products, services, etc. (look for the upcoming article on trademarks).

Back to copyright law …

The final point, and what many people don’t quite grasp, is that copyright infringement is illegal. A lot of clients go to design firms and request a design that “looks like (insert object of brand envy here).” When the designer attempts to explain why that can’t happen, the client becomes frustrated (“but that’s what I want”). There are a number of reasons “why,” including ethical reasons outside of the law such as preventing the birth of yet another branding cliché, but what’s most important is that “copying” another design is flirting with copyright infringement. Being inspired by a brand or a design is one thing – there’s nothing wrong with appreciating and finding inspiration in someone else’s ideas – but, the outright copying of another’s design is copyright infringement.

Overall, copyright law is in place to protect creativity and the progress of new ideas. For those working in the creative arts, copyright law is a tool for prevention against plagiarism. For more information on copyright law, check out the following link:
http://lcweb.loc.gov/copyright/title17/.

~Tyrie

Tyrie Smith is the copywriter and editor for Luxecetera. He has worked in journalism, public relations and marketing for 10 years … his dissertation, A Voice That Was Thin and Pure: Folklore as Literature and Literature as Folklore in the Works of Byron Herbert Reece, is available upon request.