Week 3 – Legal Accipitridae
Copyright expert Guy Goma, the Walter Benjamin of our times.

Week 3 – Legal Accipitridae

By Alan Smithee

DICK. The first thing we do, let’s kill all the lawyers.
aka, what do Dr. Dre, Steffi Graf, and Deutsche Bank have in common?

Gutenberg’s invention gave us the printing press, air conditioning and copyright laws.

There are four main IP categories:
1. Copyright, which protects original, creative/artistic expressions of non-functional ideas

2. Trademarks, which consists of logos, wordmarks, brand names, slogans, marks and symbols that are used to differentiate products or services by their source

3. Patents of which there are two:
Utility Patents protect new, unique and nonobvious utilitarian inventions, processes, business methods, formulas, or codes and Design Patents protects new, unique, and non-obvious ornamental, visual aspects of design and packaging elements

4. Trade Secrets protects secret information, processes, devices, formula or business know-how that is proprietary to a company and usually imparts an advantage over its competitors, and must be kept confidential by the business in order to receive legal protection. This is why NDAs are frequently used, not just to stop people from sharing information, but to prove that the entity tried to protect them. A patent requires the disclosure of the secret to the public.

Trade Dress protection, which (similar to a design patent) can protect packaging and product designs itself as well as colours, shapes, or other features heavily associated with a particular source as applied to either the product itself or its packaging.

Right of Publicity is a form of legal protection which protects a person’s name, likeness, voice, or persona, something that The Beatles had to deal with on their Sgt. Pepper’s Lonely Hearts Club Band cover. More about The Beatles and copyright later.

So far, so easy. Except that is where the clarification seems to end. Establishing copyright is fairly straightforward and cheap ($35) at the Library of Congress (in the US.) – in fact, it sort of exists immediately when the work is finished, filing and paying $35 is merely a way of proving that – and being able to hire a lawyer who will work on the case.

However, what happens when an artist or designer feels their Intellectual property has been infringed upon? This is where it gets less, or completely unclear. From what I understand all copyright and patent decisions are (literally) case by case, with different courts ruling in different ways. For an individual artist or designer, this means a number of things with implications on both sides of copyright infringement. The designer’s work could be copied, plagiarised, and the designer could be accused of copyright infringement, with potentially high monetary implications – as mentioned in the podcast. So checking contracts for indemnity as well as ownership before the work starts sounded like solid advice.

Documenting the work to prove a genuine development of an original idea, including original files, sketches, and email communications with the client are all beneficial, although emails are not technically a legal document. There are only so many notes invariably, two designs, marks, logos will look similar, partly because of monkeys and typewriters but also due to trends. Braque wasn’t suing Picasso because their work looked similar – actually, I don’t know that for a fact, for all I know they were suing. I know that Picasso for sure was all over Instagram accusing George of ripping him off and @Picasso_Greatest probably had his followers bully and abuse Braque, I mean, hypothetically, had there been Social Media. Diet Prada would also have been all over it – or Diet Picasso? (Diet Prada actually refers to their followers as Dieters – I don’t think they mean German industrial designers – and they can quickly marshall a virtual army by metaphorically flashing the literal Prada symbol.

As further mentioned in the podcast, if the ‘court of public opinion’ (or the court of anonymous Twitter users’ opinions) continues to have the power of shaming and thus the power of influence, clients and companies may consider including additional clauses in contracts placing responsibility and liability on the designer.

There is, of course, such a thing as trends in art and design, These move fast within fashion and slow within Architecture, but for most of working within any of the fields, the work of peers and icons has also been an influence, the internet has just accelerated and increased sharing, inspiration and homage (for lack of better words). There is also something called cryptomnesia when a former memory appears as a new and original thought. Perhaps that is what happened with Airbnb’s new logo or the underpaid and overworked Zara intern who thought they had this great idea when it was actually seen on a long-since deleted Instagram story.

Probably/maybe/I-don’t-know a coincidence, but if you are a studio that does design and your name is Design Studio, I have little confidence in originality.

There are of course more cynical ‘trends’. Apocryphally, the cylinder head of a Datsun 240z is a perfect fit for the Jaguar E-Type. The Datsun 240z was clearly inspired by the E-Type as the Fairlady was inspired by Triumph Roadsters, but they are different enough.

The Land Rover was inspired by the Willys Jeep, in turn, the Land Rover led to the development of the Ford Explorer. The Lambretta was inspired by US military Cushman motorbike, and the Vespa was brought to Piaggio by the Lambretta’s original designer….this could go on for a long time, there is a difference between knock-off, influenced by, and just general need and competition.

I hear inspiration is for amateurs.

Coaster Furniture‘s head of design (it may have been a different title) once described his design process as selecting things he liked in CB2’s catalogue making a few notes about changes on the very page and faxing it to his factories in China – which makes their website all the more beautifully ironic.

Design inspirations, indeed.

Moral Rights
I wish Kevin and Johnny had gone into moral rights. I know they are stronger in the UK (compared to the US), they alluded to designers being asked by clients to take work that they had done down from public facing media. Do I have the right to show work in my portfolio, website, Instagram, etc even if I do not own the copyright?

The Berne Convention accepted two forms of moral rights; paternity and integrity.
Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.*

So, sue me

Copyright can also be influenced by changes in context and technology. When Apple Records and Apple Computers had a dispute about names and trademarks, they agreed to do business in separate entities, possibly a coexistence agreement as mentioned in the podcast, a rumoured $80,000 was paid by Apple Computer to Apple Corps (nice pun, btw.) Over the years the Beatles’ Apple Corps sued more times and a few more payments were made as Apple Computer added more and more music capabilities and services, from which the name of their sound Sosumi is derived and eventually Apple Computer paid $500 million to own all Apple related trademarks.

There is a good chance that by using this, I am infringing on three different copyrights

Fair Use
“My wrong-headed actions, born out of a moment of fear and embarrassment, have not only been financially  and psychologically costly to myself and my family, but also helped to obscure what I was fighting for in the first place — the ability of artists everywhere to be inspired and freely create art without reprisal.

This was Shepard Fairey’s apology at the end of the court case about his Obama ‘Hope’ poster. He was found guilty and he briefly faced the possibility of prison, but not for copyright infringement.

The copyright infringement case was never really settled – it was technically between the AP and Fairey, but there is a belief that Fairey would have one a Fair Use claim had he not lied and destroyed evidence. The Associated Press and Fairey came to a settlement – they will share profits from the poster moving forward, and Fairey was sentenced in criminal court – however, the judgement was not about his use, but his actions in trying to hide the fact that he had used the picture. It was criminal contempt that was decided, not fair use.

Warhol, Koons, Bradford, Schwitters, and many more, (and I) have all used the work of others in their work; in some cases, they win, in others, they don’t. There is no clear rule, the myth of a percentage change is exactly that, a myth. I actually consulted a lawyer regarding the work I did in the last module and – as I expected – he seems to think I am in the clear, according to him, ‘It would be maybe more of an issue if you were making 100 prints or reproducing the original map. But if it were a singular piece the idea would be your reselling the map you bought with your work on top of it. The same way you can sell a CD

These seems tricky.
I bought a map, I printed on it, then I re-sold it. (well, I didn’t, so, enquiries to my email please.)

Teaching and IP

Education is great. Teaching is great. But when it comes to IP education is not quite clear. most Universities, including Falmouth – rightly – give all rights to the student. However, there are some instances that are not accounted for or clarified. At a certain level, the teaching becomes more of a partnership. All good instructors and professors want their students to succeed and all – again, good – instructors by definition are generous with their knowledge, skill, connections, know-how etc. But institutions of higher learning also produce a lot of IP. If the instructor is not afforded some ownership or rights to works created in their classes, then the obvious result will be that instructors/professors will hold back on input, help, and advice. In fact, the same could be said for group critiques from peers. Why would I help fellow students develop valuable IP if I could keep my mouth shut, and use it to enrich myself? Robert Appleton writes about an experience where a student mentored by him, who unsatisfied with a grade, then claims authorship over work that was directly connected to Appleton’s own research. The university, citing University rules on student copyright sided with the student. And my guess would be that future student research positions were less rewarding.**

Patent Trolls

The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled “An Act to promote the progress of useful Arts lawyers.” The first patent was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate) lawsuits.

Patents feature rarely in graphic design and would mostly be related to processes and machinery, but are interesting, the below is a This American Life episode looking into so-called patent trolls; entities that own patents or the sake of suing others infringing upon them, without actually having any practical use for the patents.
https://www.thisamericanlife.org/441/when-patents-attack, and here is the Edward R Murrow of our times explaining it as well.

Patent pending…

Nils Bohlin with his invention tightly fixed around him (the seatbelt, not the bow-tie)

Nils Bohlin may have saved a million lives. Or at least his invention may have. An invention to which his then employer owns the patent. But they allowed direct competitors to use it free of charge, so important was this invention for automotive safety. https://patents.google.com/patent/US3043625A/en
Talk about moral or ethical rights….

If It’s Tuesday, This Must Be Belgian Copyright Law
To make matters more complicated, copyright laws differ from country, which is just one example of why I DON’T have a proxy VPN, so I can’t watch British Television, or why Netflix (other streaming services are available) have different content for different regions, or most deliciously, why, in 2009, some Amazon Kindle users woke up one morning to find that a book that they had bought, had been removed from their devices, remotely, by an unseen force, beyond their control. That book was, of course, 1984 by George Orwell. (Also, Animal Farm and some others, but that is less juicy. 1984 legs good, two legs bad).

This was in part due to differing copyright laws and expiration dates, so while it is out of copyright in Australia, it is (or was not) in the United States (though I believe there is a free-trade agreement that covers this, The international TRIPS – Trade Related Aspects of Intellectual Property Rights – Agreement, maybe).

Amazon was – of course – sued for deleting the file.

Finally, what do Dr. Dre, Steffi Graf, and Deutsche Bank have in common? Well. nothing really, except Steffi Graf is from the town of Brühl, the logo of which was designed by Anton Stankowski who famously designed the Deutsche Bank Logo. And the beats logo has more than a passing resemblance to the Brühl town logo

It’s a ‘b’ in a circle – it’s hardly unique. Doesn’t mean it wasn’t lifted.

Gutenberg died in poverty and somewhat unknown, having accelerated the Renaissance, he made little from his invention, and WordPress – which I am currently using – named its editing system after him…so much for patents and rights of publicity. (In fairness, he has been dead a while.)

*Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).

**Appleton, R. (2005). ‘Is learning stealing?’ in Heller, S The education of a graphic designer. 2nd ed. New York: Allworth Press, pp.197-199.


This Post Has One Comment

  1. Wow what a read! You should get this published. Fantastic engagement J. Teaching and IP is a really interesting area to explore.

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