The Difference Between Copyright and Design Rights

This year has been rife with news stories of larger businesses allegedly copying the products of smaller businesses (and selling them for a fraction of the original product’s price).

When it comes to Intellectual Property Law, have you ever wondered what the difference is between Copyright & Design Rights?

Understanding the differences between the two can help you determine which type of IP protection is best for you.

Here’s a brief overview:

COPYRIGHT

Copyright is a form of intellectual property that protects the original expression of ideas (not an idea itself) in certain creative works such as; text, artistic works, music, computer programs, sound recordings and films. In Australia, Copyright Law is contained within the Commonwealth Copyright Act 1968.

No registration is required. A work is automatically covered when its created, differing from other forms of IP. Typically, Copyright lasts the lifetime of the creator plus 70 years.

Copyright refers to certain exclusive rights held by the owner of the Copyright. These include the rights to reproduce, publish or communicate (including over the internet) a work. Copyright is property and can be bought and sold independently of the physical item.

Copyright Law can be complex when disputes arise, particularly when it comes to:⠀

➕Breaches of your copyright ⠀

➕Issues relating to licensing, distribution, reproduction, communication, performance or monetising your copyright⠀

So it’s important to seek independent legal advice if you need assistance in this area.⠀

And remember💡Copyright owners also have non-economic rights known as moral rights. These are recognised as “the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.”

REGISTERED DESIGNS/DESIGN RIGHTS

A Design Right aims to protect the visual appearance of a whole product that is new and distinctive, has physical and tangible form, is manufactured or handmade and is produced on a commercial scale. Design rights don’t protect designs with no physical form (eg concepts, processes and computer graphics) or the use of a product or how it works.

Once you’ve registered a design, you have protection for an initial period of 10 years (subject to you renewing the design rights). It gives you exclusive rights to use the design within Australia and take legal action against someone who uses your design without your permission.

(For more information head to IP Australia here)

Disputes when it comes to Design Rights can be complex. If you need assistance in this area, make sure you consult with an Intellectual Property and Dispute Resolution expert.

CASE STUDIES

Copyright breaches between large organisations and small business owners have featured a lot in the news this year! Here are some stories we’ve shared on our socials:

The Wandering Folk and ALDI

Photo Credit: Wandering Folk Instagram

Byron Bay small business The Wandering Folk made headlines after the owner accused ALDI of copying her unique picnic rugs and selling them at less than a third of the price.

Wandering Folk’s decorative picnic rugs retail for $190 whereas Aldi’s range of decorative picnic rugs, with similar designs and features, retailed for $49.99.

Wandering Folk founder Sharnee Thorpe shared a video on her social media detailing the comparisons and her heartbreak at realising this had occurred. She says there is nothing the small business can do “except for educate everyone on always supporting creatives”. At the time Thorpe acknowledged Aldi’s versions were legally acceptable according to legal advice she sought.

{Click the article here for more information}

Craft Club and Typo

Photo Credit: Craft Club Instagram

In April this year, Founder of Craft Club, Nakisah Williams took to social media to call out Cotton On and its stationary brand Typo for a product that is “near identical” to her rug making kits.

She claimed the big Australian business “ripped off” her design before selling it at a much cheaper price.

She sells latch hooking rug kits for $89.95, and spotted Typo’s new similar product for $30 cheaper at $59.99.

Nakisah posted “it came to our attention yesterday that Typo has released rug making kits that are near identical to ours in product / packaging and very similar in design,” she said.

In response, Typo shared a statement on their social media.

“We’re a bunch of creatives that are working to make life anything but ordinary. We may have a big presence but we’re a small team that wants to have a positive impact on the world. Over the past few days we’ve been listening to the feedback from the Craft Club and our community. We have reached out to Craft Club directly to continue the conversation.”

{You can read that article here}

Tribe Tropical & Shein

Photo Credit: Tribe Tropical

Emily Gradon is the owner of award-winning Queensland fashion label Tribe Tropical that specialises in swim and beachwear. Gradon works with artists to design exclusive patterns inspired by Australia’s tropical destinations.

Speaking to Today, Gradon was understandably heartbroken when she discovered online retail giant Shein was carrying very similar designs to her own.

“It’s very heartbreaking because you do have so much time, money, effort and expense put into it. I thought if they can do that to four of my patterns then it is likely they will do it to others,” she said.

To make matters worse, the Shein swimsuits are selling for a fraction of the cost of Gradon’s brand at $11.95 a piece compared to $64.95.

Gradon consulted with a defamation lawyer who advised her their legal team could send a Cease and Desist letter notifying Shein of a possible copyright breach of Gradon’s designs.

In a statement to 7Life, a Shein spokesperson said:

“Shein takes all claims of infringement seriously. It is not our intent to infringe anyone’s valid intellectual property and it is not our business model to do so. Shein suppliers are required to comply with company policy and certify their products do not infringe third-party IP. We continue to invest in and improve our product review process.”

{Click the article here for more information}

PROTECTING CREATIVES

So what can creatives do to protect their work? One option is to explore the benefits of design rights or copyright protection in respect to their product.

At Litton Legal we can help you understand your options for legally protecting your brand and products when it comes to copyright, designs and other intellectual property aspects. We can devise an optimal Intellectual Property strategy that works for you. Head to our page here for more information.

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