Lewis Carroll, Alice's Adventures in Wonderland.
If you ask a person what they think design is, the response you receive will be grounded in their perception of art, logos, packages, commerce, communication, or law. And, despite the vagary of the responses, they are each, to some extent, more or less correct. This is what makes any attempt to categorize design so difficult; it is lightning that cannot be placed into any bottle.
Designers tend to view design as "solving a problem" or "communication." Purchasers of design services, the client, tend to view design activities through the self-referential lens of commerce and commercial identity related to their own products or services. The lay community; non-designers who form the true consumers of design, see only logos, text, photographs, and drawings. I hold three different but interrelated views of design: it is art, it is intellectual property, and it is magic.
This is the first of a series of articles that will explore the various forms of Intellectual property law and design. It is a personal attempt to synthesize a user-friendly understanding of the complex laws that govern activities at the nexus of art, design, and commerce and a good place to start is the beginning. In the United States the federal protections offered creativity grow out of the Constitution. Article 1 Section 8, Clause 8 of the Constitution requires that Congress "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the respective Writings and Discoveries…." While the understanding of 18th century terminology used here has changed over time, the intent embodied in the words has not. Artists, designers, and inventors have a constitutional and exclusive right to their work for a limited time.
The "deal" inherent in this language is that, in exchange for the limited exclusive right granted to an artist, author, or inventor, the public gets immediate access to knowledge and eventually, an unfettered right to access and use the works themselves. In sum, once a protected work falls into the "public domain" the public can use it both at will and without restriction. Setting aside for now the disputes relating to how long is limited and the size and scope of the public domain and the inevitable exceptions to every rule, our exploration will begin at the beginning. Namely, what are the forms of protection for creative work and what do they protect?
Copyright law is intended to protect most non-functional works of art and design. The statute is known as Title 17 of the United States Code and Section 501 is the definition's section which provides a basic roadmap as to what copyright does and does not protect. It is important to note that copyright law is relatively old, but like any great work by an old master, it presents timeless concepts. The first concept to remember is that if a work is functional, or it has a useful purpose, it cannot be subject to copyright protection. Therefore, with very limited exceptions, almost every practical work of design cannot be protected. Generally speaking, works of literature; musical works including any accompanying words; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings and architectural works, can all be protected by copyright. Several of these terms are old but they still provide some guidance. A graphic work is generally understood to be a photograph, etching or lithograph, or other form of reproduction of a work. A pantomime, once a radical form of wordless performance, can now be construed to partially encompass a modern play or even a comedian's stand-up routine. An audiovisual work, a term having more than a whiff of the 1960s, is now considered to also partially include software works such as the growing number of Apps available for mobile computing devices. Under current law, once a work exists, a copyright automatically "springs into existence."
Registration, while not required under law, gives the copyright owner additional rights. In a sense, registering your copyright is an inexpensive way to give yourself a legal rights "upgrade." A well educated designer needs to have a basic understanding of how intellectual property laws affect the practice of design and their interactions with their clients. In future articles, I will devote more time discussing copyright law, the mechanics of the copyright registration process, as well as the law and mechanics related to the protection of trademarks, service marks, and design patents and how each is related to design.