A copyrighted image is an artistic rendering protected from recreation without permission, a way to cover the artist’s rear end, as it were. A trademark specifically protects assets of the brand image. This includes logos, phrases, symbols or any distinctive visual aspect of a brand. Now that we have a basic understanding of intellectual property law, here are six fun facts you shouldn’t leave the office without.
1. You are protected if it’s a parody.
The law is called “Fair Use,” and it is used to protect our freedom of speech. Fair Use states that an individual is protected from copyright and trademark infringement if it is for the use of parody, satire or caricature. Fair Use also extends to using copyrights and trademarks for educational purposes, permitting use for research, teaching, scholarship, news broadcasts, and non-profits.
2. Colors can be trademarked.
Yes, oddly enough, trademarking can even extend to colors and packaging, or “trade dress.” Target owns red, Home Depot owns orange, Louboutin owns their peek-a-boo red, and John Deere owns green. If it seems like a joke, it’s not. If a particular color is an identifier of your brand, meaning if it is “distinctive” and the consumer can identify the source, then it can be trademarked. For example: if Arby’s one day rebranded using the golden arches and the iconic mustard and ketchup color scheme, you bet that McDonald’s would be all over them for trademark infringement.
3. Intellectual property laws are national, but the internet is global.
Intellectual property laws have become rather sticky since the internet. The net makes it easy to share and acquire intellectual property with a click, and it’s nearly impossible to credit the source as it trails through many IPs. Making it even more complicated, intellectual property laws vary by country. A perpetrator in the Philippines—a country that practices the “first to invent” law—who’s reusing T-Mobile magenta for his mobile phone company might be difficult to apprehend.
4. Apple once sued NYC for trademark dilution.
Trademark dilution is the concept of flooding the marketplace with similar logos, so that consumers become confused about the original source. It need not be about design similarity, as long as a company can argue that the vaguely similar logo takes association away from the brand’s image. An example of this was when New York City adopted a green apple logo, one that Apple thought was too similar to their distinctive white apple silhouette. The case was not a strong one, and was thrown out, but it is a cautionary tale to designers to be careful where you draw inspiration.
5. You can’t copyright ideas.
A copyright protects your creative work. It protects it from being reproduced without your consent and without just compensation. According to The Professional Association For Design, anything that is a tangible medium of expression can be copyrighted. However, you cannot copyright ideas. Copyright does not protect words, typefaces, or simple designs. It only covers an idea expressed through tangible form and derivative works.
6. There is no 20% rule.
Once, a designer-turned-Uber driver told me that back in his design heyday, designs needed only be changed 20% in order to avoid copyright infringement. Maybe his agency slid by without a hitch back then, but it is not that way today. As the predatory Lilly Pulitzer copyright squad proves, there is no 20% rule. Lilly Pulitzer, known as the “Queen of Prep” and perfector of the shift dress, invented every floral print that any human could ever conceive back in the 60s and copyrighted them all. Although the fashion industry is a different sect of law altogether, Pulitzer’s prints are hard-pressed not to be recreated, even by accident. So if there is no mathematical equation to determine similarity, how is it determined? Easily enough, if the average person can assess that the designs are “substantially similar,” then it is copyright infringement.
Sometimes it’s about picking your battles, and other times it’s about defending yourself. Designers are lone wolves, and it’s understandable to be protective of one’s art and livelihood. Being upfront about expectations is not rudeness, it’s a service to everyone involved, protecting your art and their interest. At Creative Juice, we aspire for transparency, not surprises, except for surprise parties, and surprisingly great design.