“It is better to fail in originality than to succeed in imitation” – Herman Melville.

Whether they do it for love or for money, all creatives want their work to be original. Originality is seen as the yardstick of creative skill and talent. But for the purposes of copyright protection, what is the threshold of creativity that makes a work original?

Whether they are contemplating action against an infringer, or their own work is challenged, it is important that creatives understand the concept of originality.

A distinction needs to be drawn between copying, and using existing work to create something new. The former is infringement; the latter is a derivative work.

Originality begins with the choices you make when creating a work. These choices may be limited by the technical standards or best practices of your discipline, or dictated by the use to which your work is to be put (i.e. an iPod needs to play music). But then there are those creative choices you make, those that apply your signature to the work. It is these creative choices that are protected by copyright.

Take a telephone directory – it is made up of information from the public domain and there is very little scope for arranging that information in a creative way. The creative choices that go into it are very limited. Compare this to the creation of a website. A significant amount of creativity goes into selecting the elements and putting them altogether.

Originality standards are not the same in every country. There may also be different standards for different categories of works within a country (e.g. utilitarian or functional works such as computer programs and databases vs creative works).

However, in practice, it is often the case that the end result is the same across jurisdictions even thought different standards have been applied.

It must always be remembered that while creative works will by definition be ‘original’ and covered by copyright, creativity is not required to make a work ‘original.’

Here are a few questions to ask yourself if you ever get into a bun fight over whether your work is original (or you are taking on someone who has copied you):

1. Did you refer to existing work during the creative or development process?

2. How much did that work influence you (be honest with yourself)?

3. What “creative” choices did you make about the work, which were not based on industry techniques, best practices or the functions to be performed by the work?

(The more intellectually creative you are, the more chance you have of the work being original).

4. How much of your own personality come through in the work?

5. Can you identify elements of the work that could only come from you?

(If not, start trying to develop a distinctive stamp you can put on your work)

6. Don’t be guided by the puddle of blood, sweat and tears – copying can also be hard work sometimes.

7. If there was very little scope for you to arranging the different elements of the work because of the nature of your discipline, the choices you made when arranging those elements will be scrutinized more closely.

(So document as far as possible how you went about selecting and/or organizing the elements)

8. Do you need to be factually accurate when creating the work?

(If so, the scope for creativity may diminish)

9. Is the general public going to be interested in the work you have created? Is it different to other similar types of work (e.g. maps, diaries)?

It is not easy to be absolutely novel and unique these days. But the good news is that copyright law doesn’t expect you to be before it protects you.

This situation can come about for a number of cases

One example is when an unscrupulous third party is involved. For instance, a respectable company may hire a shifty “designer” to design a new logo and end up with copied work which they end up trying to defend a few years later by suing the actual owner.

Another possible scenario is subconscious copying. On a small level we all unknowingly copy parts of each other’s ideas, ‘looks’ and styles every day, the question here is where to draw the line and the law is usually pretty specific about that.

But perhaps the greatest cause of these confusingly common “perp-free” cases is simply that sometimes two people come up with bizarrely similar work at the same time. No!… Yes! Why?

Because 1) There is nothing new under the sun and 2) we all operate in the same or similar Zeitgeist* especially in today’s globalised and online world.

It’s also becoming far easier to find similar work because of the sheer number of creative’s operating on the web.

Your next great piece of copy is a result of your inspiration and approach that, in a global world, may be frighteningly similar to mine. And your resulting work may be too (especially if it’s simple work  – a four word payoff line or a clean, simple logo or name).

If you’re at the edge of your art/science, look to the left and right of you. You’re not alone. It’s possible that others are stepping on remarkably similar territory, coming from the same collective sources of inspiration, solving the same problems, developing at similar speeds, and approaching their crafts using the same tools and methods. Remember Nylon? Invented, so the story goes, in New York and London separately but simultaneously.

Take for example the proliferation of ‘love brands’ three years ago. Love was, very literally, in the air: Love your skin^TM, love yourself ^TM, juice is love ^TM, we are love ^TM, I’m lovin’ it^TM . love love love… grey is the new black, yellow is the new grey. Then there were the three word payoff lines: simpler, better, faster ^TM; today, tomorrow, together ^TM, “word, word, word”.

Recycling is in (so too is brown paper and energy saving ‘dark sites’), bling is out… oh no wait, it’s back in. Illustrator has a new gradient plug-in, the word “unfriend” has just been added to the dictionary.

Design, writing, photography, all of the creative arts sit on a greater platform called zeitgeist and as we develop together similar ideas and work emerges from entirely disparate sources. It happens.

Now bear in mind that blatant copyright infringements are also commonplace

The danger of the whole zeitgeist thing is that it can be branded about as an excuse.

Naughty naughty.

But in cases such as these, more so than in any other, it boils down to WHO WAS FIRST. See where I’m going with this? And remember my zeitgeist take on things is just my take on things – perhaps another of the subjective tirades I seem to be so fond of. But then again, perhaps you’ve had mysteriously similar thoughts yourself? Perhaps we’re standing together at the cutting edge of copyright philosophy? Perhaps you yourself are a writer and you’ve written/are writing a little piece similar to this yourself? Maybe it’s very very similar.

Whatever the case, I’m cool with it. But be warned: if you do in fact copy me then sleep with one eye open. I’ve already uploaded this article on Myows.com and I WILL take you down.

*Zeitgeist roughly translates to “the spirit of the time”. See more at http://en.wikipedia.org/wiki/Zeitgeist

In Part 1 of our series of articles on copyright for graphic designers, I introduced you to the basics of copyright – what it is, how it can be infringed and how to protect it.

In Part 2, I will look at the traditional ways you can make money from your creativity.

Copyright is like a picnic basket with different goodies inside. You may not want everyone to share everything in your basket, and instead you want to limit what they can and cannot do with your copyright. For example: you may allow one person to publish your work as is, while allowing another to adapt it and publish a new version.

You can also grant the same rights to people in different countries or geographical areas where you have copyright or give all of your rights away to one person who enjoys your copyright throughout the world.

Finally, you can limit the time period in which people can enjoy your rights. Think of the software you use and the annual subscription fees you pay to renew your licence rights.

There are 2 recognised legal ways you can grant rights in your work to others:

1.    By assignment; or

2.    By license.

Assignment

Assignments are basically like the sale of your copyright to someone else. For as long as the person you assigned your rights to (the assignee) enjoys your rights, you cannot exercise them. The assignee is the new holder of the copyright and they, in turn, can assign or licence the rights onto someone else. If someone unlawfully infringes the copyright, it is the assignee who must enforce it.

Assignments can be limited to a particular country. For example, you can assign your copyright in the UK, but still enjoy it in the US. Assignments can also be limited to a particular period of time. Once the time period ends, the copyright reverts back to you as the original holder.

A valid assignment can only be carried out if there is an underlying agreement to assign your copyright and the assignment itself is reduced to writing and signed by you. It is always a good idea to draw up a contract setting out exactly what is being assigned and specifying if there are any limitations.

You can assign your future copyright in a work still to be designed. However the assignment will only be effective once the work has been born and is vested with copyright.

If you are assigning your copyright, you will usually be able to charge a higher price because you are limiting your ability to earn money from it in other ways.

Licensing

A license is basically a promise from you, the copyright holder, not to sue the person holding the license (the licensee) when they exercise some or all of your copyright. Unlike with an assignment, you remain the owner and merely allow the licensee to exercise the right.

Copyright licensing is a bit like the design process itself – there are an infinite number of licence variations limited only by the creativity of the drafter.

Licenses can be exclusive, i.e. no-one but the licensee is allowed to enjoy the same rights for the period of the license; or non-exclusive where the same rights can be granted to various people.

Non-exclusive licenses don’t have to be in writing, and can be given verbally or even by conduct (E.g. if someone is using your work without your permission but you don’t object). Unless the license is specifically agreed to be non-revocable, you can take it away at any time. However if the terms of the license are that it is perpetual, then it cannot be terminated unless further agreement is reached or the licensee commits a breach of the license.

An exclusive license must be in writing and signed by you. If an exclusive license is not reduced to writing and signed, it becomes a non-exclusive license. The exclusive licensee has the right to take action against third parties for copyright infringement in his or her own name. Their right of action exists concurrently with your own right of action.

In Part 3 we will look at new forms of licensing which have been introduced to accommodate new ways of sharing content on the internet and across other digital platforms.

If you have any queries, leave a comment, contact Steve (steveatniccifergusondotcodotza) or post your question on the Myows Forums.

If you are a designer, your bread and butter is your creative work. Unfortunately, the internet and other digital technologies have made it easier for copycats to steal your work or pass it off as their own. The law of copyright is there to protect you. But if you don’t know how copyright works or how you can use it to protect your work, it is pretty useless.

In this series of articles, we hope to arm you with some working knowledge on copyright and how you can use it to protect your creative work.

What is copyright?

Without getting into the legalese, copyright is basically the right to stop other people from copying, publishing or adapting your creative work without your permission.

Looking at from the opposite angle, the owner of the copyright in an original work has the exclusive right to copy it, publish it, display it, distribute it, or make new works from it.

What is not copyrightable?

Designers need to take into account that the following items cannot be copyrighted:

-       titles, names, short phrases, and slogans;

-       familiar symbols or designs;

-       mere variations of typographic ornamentation, lettering, or coloring;

-       mere listings of ingredients or contents

-       Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices

-       Common information such as calendars, measurement charts, TV guides

-       Government or legal documents

A number of these things may be protected by trademarks. But it will be the client, and not the designer, who will be entitled to apply for trademark protection.

If you are not sure whether your new logo design would qualify for copyright protection, consult a specialist attorney.

When do I have these rights?

Copyright comes into force as soon as you have transferred a great idea from your head to something written, drawn, doodled or typed on a pad, computer or sandstone tablet.

Do I need to register my copyright?

Registration is not a requirement for enjoying copyright protection. However in the US, registration is necessary if you want to enjoy certain benefits (presumption of copyright ownership, right to claim statutory damages) when suing a copycat in court.

What does the © do and do I need to put it on my work?

Putting a copyright notice on your work is not compulsory (unless you can use it as a new design element). But it does tell people that the work is copyrighted and prevents defendant’s from claiming innocent infringement when you sue them (damages are not payable by an innocent infringer).

Does my new creation need to be absolutely original to enjoy protection?

Your work does need to be original if you want to enjoy copyright protection. But the test for originality is not a strict one. Your work doesn’t need to be of the “never been seen or done before” kind. It simply needs to originate from you with an ounce of independent skill and effort thrown in.

Can I use someone else’s work to create a new one?

Using someone else’s work to create a new one may be copyright infringement if you don’t have that person’s permission. However, the copyright in the new work (known as a derivative work) will then be owned by both of you. You will be able to assert your rights over the new part that you created, even if you have infringed someone else’s copyright over the old part.

The distinction also needs to be drawn between copying, which negates originality, and using existing material or knowledge common to you and to other people in your industry. This common knowledge doesn’t negate originality.

If I create the work, will I always own the copyright?

The short answer is yes, but there are some exceptions. If you are employed and you design something for your employer, they will usually own the copyright.

If you are not employed but you do work for a client and agree to assign the copyright in the work to the client, you will not be the owner of the copyright.

How long does copyright last?

The term of copyright protection differs from country to country. But the rule of thumb is basically while you are alive and for 50 years after your death (70 years in the US).

Do I need to assign copyright to my clients?

This will depend on the way you offer your services or run your business. If you are designing a number of templates and licensing them to a number of people for a relatively low fee, you would want to retain your copyright. If you are designing customized brands and getting paid a lot of money for it, the client probably should be entitled to the copyright in that work.

However, the way the law is framed at the moment, if your copyright is not assigned in writing to the client, you will remain the owner. This is not common knowledge and client’s often mistakenly believe that they are automatically the owners of the work you do for them.

It is often a useful tool for getting your money by agreeing with the client that you will assign the copyright to them once they have paid your full fee.

What are the client’s rights to the work if I don’t assign them the copyright?

If there is no written assignment agreement relating to copyright ownership between you and your client, the client will generally have a licence to use your work. It will usually be implied that the licence is a non-exclusive, personal, irrevocable and royalty-free licence to use your work for as long as you enjoy copyright protection over the work.

The client does not usually have an automatic right to tamper with or change your work and they cannot sub-licence it to other people.

The best thing to do when offering your services is to present a written document to your clients setting out how you want to deal with the copyright issue. These standard terms can bring a level of certainty to your relationships with your clients and costly disputes can be avoided.

If I put my work on the internet, do I lose my copyright?

No, you will still enjoy full protection if you post your work online. Remember to put your copyright notice on the webpage containing your work just to remind people of this.

How can my copyright be infringed?

Your copyright will be infringed when someone copies or adapts a substantial part of your designs without your authority. Tests vary from country to country on what is regarded as substantial but the rule of thumb is that the substance of your work is that part that gives it its originality.

Your copyright can also be infringed by someone else who doesn’t copy or adapt your work but who distributes or makes infringing copies of your work available for sale or rent when they know that your copyright has been infringed.

What do I need to prove if I want to sue a copycat?

Outside the US where copyright registration is not used, you need to keep records of the works you create and that you created them. This should be independently verified by a third party (like Myows). Once can you can show the court that you are the owner of the copyright in the work, you must then show that there is some connection between your work and the copied version.

If you can prove that the copycat had access to your work before the copied version was created, that is half the battle won. However, the opposite also holds true. If the copycat can show that they didn’t have any access to your work and that they came up with the exact same work on their own, you will both have copyright in that work.

What defenses can be raised by the copycat?

Copycats will usually try to disprove that you are the owner of the copyright or that they came up with the work on their own. Getting independent, time-stamped evidence of when you created your work will again be an effective answer to these tactics.

Copycats often argue that, by your own actions, you have abandoned or waived your copyright in your work. It is therefore important that you remain vigilant and crack down on any infringements as soon as you discover them.

What does fair use mean?

Most countries allow limited copying, without permission, of protected work for private study, research, criticism, and news reporting. The copying needs to be fair in the sense that it should not deprive you of your rights or your ability to make money from your designs.

Most copying that happens is for commercial gain and the copycats will not be able to rely on the defence of fair use or fair dealing.

What are my legal remedies if someone copies my work?

There are a number of legal remedies you can ask the court for if you find someone has copied your designs without your authority.

1.    You can apply for an injunction (also known as an interdict) to prevent further copying or distribution of your work.

2.    You can ask the court to order the copycat to deliver-up all the infringing copies of your work.

3.    You can claim damages OR a reasonable royalty for the copies of your work that has already been made and used by the copycat.

4.    If the infringement was flagrant and you can prove that the copycat intentionally stole your design, you can ask the court to award additional punitive damages.

Can I threaten a copycat with criminal charges?

Yes, copyright infringement is also a criminal offence. Unfortunately, most countries don’t have dedicated police and court officials to deal with copyright cases. The case usually takes a while and you have no control over the process. However, criminal action may be welcome relief from the expense of bring a civil suit.

Do I need to appear personally in court to protect my copyright?

The laws of most countries allow you to bring your evidence to court in the form of an affidavit. You will only need to appear personally if the court needs you for further questioning or to provide more clarity on the evidence you presented by affidavit.

Do I have copyright protection in other countries?

You will enjoy copyright protection for your designs in most other countries who are signatories to the Berne Convention for the Protection of Literary and Artistic Works. The Convention guarantees protection of your rights in all countries party to the treaty at the same level as you would enjoy in your own country.

What is digital rights management (DRM)?

DRM is a technology solution to the problem of copyright infringement. Digital watermarks or disabling the right-click save mechanism for online images are two examples. International laws have been introduced to prevent DRM technologies from being hacked or circumvented in an effort to stop copyright infringement at the source.

If you have any queries, leave a comment, contact Steve (steveatniccifergusondotcodotza) or post your question on the Myows Forums.

But what exactly is an OW?

The official version that you’ll find on the Myows site is: “Anything you create that is not a copy of something else and has been ‘reduced to material form’ (meaning it’s not just an idea).”

The list of file types that Myows accepts provides further clues:

Images (.jpg | .gif | .png | .bmp | .tif | etc.)
Video ( .mov | .avi | etc.)
Sound ( .mpg |. mp3 | etc.)
Text ( .doc | plain text)
Vector files ( .ai | .id | etc.)
HTML files
Animation ( .fla | .swf )
Code
Presentations

But that still doesn’t fully demystify the OW in all its multi-faceted glory. We’re looking for a definition here. Myows is a legal service and so most of the definitions and processes provided to members have their basis in the law.

This is where the system gains its strength. Even though the courts are only a last resort, it’s good to know that you’re working with a system that has been designed to fit legal requirements should your copyright disputes ever come to that.

The idea of OWs is a simplification of the legal notion of a substantive and original creative work that has been reduced to material form – this is required for you to claim copyrights in said material. The word OW is an acronym; it stands for ‘original work’. Let’s break that apart.

ORIGINAL

Firstly an uploaded file needs to be original in order to qualify – it cannot be a copy of something that already exists.  The exact definition of what constitutes ‘original’ depends on the type of work you’ve created. It may help to start off by looking at what the law considers to be a copy – ie: Not original.

In some cases this is clearly defined – such as lyrics that include a certain number of the same words in a row would be considered copied. Same with musical notes.

Images, film and artwork are a little more tricky. If the work is a ‘carbon copy’ then, clearly, the unauthorized copier is in the wrong. If the work is completely different she/he is safe. Anything in between needs to be decided by a competent court or arbitrator or judged by the public at large.

Original also means that the work needs to be unique and ‘ownable’ in nature… it needs to be distinct. You can’t claim copyright of the word dog for instance. Nor can you claim the word dog in Times New Roman as your logo. You also can’t claim the musical note ‘C minor’ as your own. Beware the overly simple OW – it may not be an OW at all!

Really complex OWs on the other hand may include multiple rights. For example, you can definitely claim your design for a new type of suborbital passenger aircraft. Such a design is definitely not in the public domain (as the word dog and the blue circle are) but if somebody challenged you and claimed ownership of a similar design, you’d have a complex battle on your hands.

OWs as complex as this often consist of thousands of smaller parts, designs and technologies which are not only copyrightable but also patentable – a separate and specialized branch of copyrights a little like trademarks.

WORK

Secondly, the work in question needs to be… well, a work.

An idea is not a work, a work needs to be ‘reduced to material form’.

Back to our example of the suborbital aircraft. The idea of a suborbital passenger aircraft is a good idea.

But it’s just an idea. You can’t have copyright in an idea.

Floor plans, engineering blue prints, logos, ad jingles, uniform designs, recipes for in-flight meals, etc. etc. etc. etc. – now those you can own.

So Original Works (OWs) then are substantive plans, designs, arts, writings etc that you created and that are unique and original (they wouldn’t exist if you didn’t exist).

Copyright law does depend, to some extent, on the law of the country, territory or region that you’re looking at. Generally however, copyright laws have been internationally standardized and last between 50 and 100 years after the author or creator’s death.

(find out much more at http://en.wikipedia.org/wiki/Copyright)