Q & A with Dids Macdonald CEO of ACID
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? 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. However, if reproducing the original artwork requires a degree of skill, such as the use of a mosaic technique, then you may find that you acquire a copyright yourself. There may then be issues as to whether your copyright is enforceable or whether you need to make terms with the copyright owner in order to sell your work.
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? Geometric shapes can fall under the ‘generic’ heading which means that 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. Also, if your design has been created entirely independently, ie you haven’t copied it from anyone else, and you can prove that, you will have a defense if faced with any allegation of copying.
Q. How do you know if you are copying someone’s work or infringing copyright in a fairly simple design, for instance a coordinating 17
pattern like polka dots, which has been done many times before? How could you claim a design like this as your own? This is another example of using generic material, which may limit the intellectual property created within a design. 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. However, at present there is no central worldwide database of unregistered rights so it would be difficult to know if someone in another country has already produced the same design. Registered designs can be searched at UKIPO and OHIM and both websites offer excellent advice on this. It is a good idea to develop some kind of company policy for monitoring the market, and the Internet, for designs similar to yours.
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? 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 start. It also raises the important issue of licence agreements