Dids Macdonald OBE tells designers how to protect their intellectual property
When created by experts, gardens can be transformed from the ordinary to the extraordinary. This is the result of creative skill, vast experience and knowing what works. And this takes time. During the many stages from design brief to completed garden, there are numerous ways in which the designer can protect their valuable intellectual property.
Step one in protecting your work is to create an Intellectual Property (IP) strategy. Make sure plans, drawings and sketches are signed and dated. Often there will be many stages before a final plan is agreed, so record and number them. Copyright exists in your plans, drawings and sketches so, as a minimum, include the copyright ©, your name and the date, and be bold about it.
Anti Copying in Design (ACID) has a Copyright & Design Databank (currently holding approximately 300,000 designs),which doesn’t add to your rights, but records the date the designs are lodged with ACID, providing independent evidence of the lodgement date should it ever be needed. There is also a downloadable, numbered certificate that you can include in contracts.
Prioritise prevention. Incorporate a phrase such as, “All copyright, design rights and any other intellectual property rights existing in our designs and products and in the images, text and design of this [website/marketing material/plans] are and will remain the property of [your business name]. Any infringement of these rights will be pursued seriously.”
If you create 3D designs, register them either with the UK Intellectual Property Office (www.ipo.uk.gov) or with the Office for Harmonisation in the Internal Market (www.oami.europa.eu). Post-Brexit, you may have to apply once in the UK and then in the EU. Alternatively, if funds are tight, you can register them on the ACID Copyright &Design Databank.
Also consider protecting your company name with a trademark. The more you build up a reputation in the name by which you are known, the more you build brand equity. Logos can now be protected too, by a registered Community design (RCD). If you are relying on unregistered rights in your company name you can add ™ to the name, and if you have obtained a registered UK or Community trademark you can add ®. Registering means you have an automatic case for infringement if someone else decides to use it without your permission.
Who owns what?
Often people want to know if, having been employed as a designer, they can use the designs created for this company after they move on. Generally, you will be prevented from using any designs created whilst in employment where you were paid a salary. Sometimes where a designer has worked for a company and then gone solo, they have created similar products to the designs created for the company. This can create problems as you may be creating designs which infringe those owned by your former employer. You must also seek permission before showing work created under any previous employment to third parties.
With photography, it is important to know who owns the IP. If you take images, you will own the copyright; but if you commission a photographer to take images of your work they will usually own the copyright, so get an Assignment of IP Rights Agreement as part of your standard terms and conditions of business. It saves time later if you want to expand the use of the photographs without having to ask permission every time.
When it comes to agreements, it is important that in any agreement with a client that IP rights ownership is clarified right from the onset. Recent changes included in the IP Act 2014 on commission designs ensure that IP rights are owned by the designer and not the commissioner unless specifically agreed.
If your project includes collaborative design, ensure there is clarity of ownership at the outset of any project and written down in an agreement. And finally, if you are tempted to go to social media to complain, don’t – not without expert specialist advice. Carefully chosen words can avoid defamation, and this strategy has often proved successful if handled correctly.
Getting the word out that your company has a proactive IP strategy is a good message to communicate to anyone thinking of copying.
Dids Macdonald OBE is chief executive of ACID (Anti Copying in Design), an organisation representing thousands of designers from more than a thousand design-led companies within the creative industries. ACID’s key objectives are IP education, deterrence, prevention and support.