When it comes to building your architecture or design business, there’s so much to consider. Beyond creating and establishing a vision, you have to market it and find the right people to help you realize it. How do you protect that vision, though? That’s the question that came up at a recent workshop on intellectural property sponsored by the IIDA NY and LMNOP, an organization dedicated to providing professional development to members of the architecture and design communities. We thought the topic was timely—especially in the digital age—and were delighted to have the organizations put us in touch with Cheryl Davis, of Menaker & Herrman LLP, to answer some questions on how you can safegaurd your own intellectural property.
Why should designers care about design in the context of intellectual property?
A designer’s stock-in-trade is his/her designs, which are, by their very nature, “intellectual property.” It just makes good business sense to protect the source of your income. Even if you don’t intend to use the design again, retaining ownership of it may give you leverage. For example, if the client refuses to pay you for your design services, you may be able to withdraw permission to use your design until the dispute has been resolved. If you choose to transfer your intellectual property rights, you should at least use them as a bargaining chip, rather than simply giving them away.
What are some mistakes designers make when it comes to protecting (or not protecting) their intellectual property?
One of the worst mistakes is failing to address ownership of the intellectual property at the start of the relationship. If the agreement doesn’t clearly state who owns the designs, the client may presume that s/he owns the designs outright (a common misconception) and feel free to solicit and retain other designers to use your designs without your permission. If ownership of the designs is clear from the outset, the parties know where they stand.
By using patents properly, what can designers get out of them?
It’s sometimes difficult to obtain a copyright for what are termed “useful articles”—namely “an object that has an intrinsic utilitarian function”, such as a chair or a table. While copyright can protect the ornamentation and stylistic curlicues that make an item unique, it can be difficult to get the Copyright Office to find such ornamentation protectable, especially where it is difficult to clearly distinguish it from the useful nature of the article. However, a design patent—which protects the “new original and ornamental design for an article of manufacture”—may enable you to protect your product designs even when the copyright law won’t.
How can designers protect their work?
By making sure their agreements expressly state that the designer owns the intellectual property in her/his designs. They should also put proper notice on the designs when circulating them to clients, as well as registering the copyright and/or design patents in their designs.
What’s the impact of an increasingly digital world have on designers’ intellectual property?
It provides more ways in which the intellectual property can be exploited—and in which it can be infringed. The more people who see your designs via websites, Twitter, Pinterest or other media, the more likely it is that people will be intrigued by them and want to buy your services or your products. Conversely, images may be taken from your website and used as part of a digital advertising campaign for a product you disapprove of without your permission. Ease of access can cut both ways.