Design patents protect the appearance of a variety of commercial objects. Copyrights protect visual creative works (among other things), such as paintings and sculptures. You may wonder whether copyright and design patent protection overlap or how to you decide which to use.
The Copyright/Design Patent Subject Matter Distinction
Copyrights protect nonfunctional objects. The copyrighted subject matter must have no substantial practical utility or must be separable from a useful substrate. Most copyrighted works are pure artwork, such as statues, photographs, drawings, etc., and have no substantial practical utility.
Some copyrighted works may be fixed to a useful substrate, but this fixation is arbitrary and serves no functional purpose. For example, a picture on a coffee mug , a mural on a wall, or a sculpture serving as the base of a lamp. These works are part of a useful object, but are separable therefrom. The creative aspect of the work that is entitled to copyright protection is simply adhered or added to the functional object.
On the other hand, design patents cover the ornamental appearance of functional objects. The shape or surface ornamentation of a shoe, car part, or a cabinet, for example, can be protected by a design patent if not dictated primarily by functional considerations.
So, the scope of subject matter protected by copyrights and design patents differ. Nevertheless, there is some overlap, as for some objects both copyright and design patent protection can be obtained. For example, a lamp with a sculpture for a base could be protected by copyright, for the sculpture, and by a design patent, for the ornamental design of the lamp, which is a functional object.
Similarly, the surface ornamentation of an object may be separable from the object, and therefore copyrightable, yet still be the ornamental appearance of a functional object and therefore entitled to design patent protection.
Design Patents and Copyrights Have Different Infringement Tests
Copyrights protect an item from being copied. Generally, copying is presumed if an allegedly infringing article is 1) substantially similar to the copyrighted work and 2) the creator of the article had access to the copyrighted item. However, there is no copyright infringement if there was no copying. Even if the allegedly infringing work is apparently identical to the copyrighted work, if it was arrived at independently it does not constitute infringement.
Design patents, in contrast, protect against anyone else using the same design, regardless of whether they came up with the design entirely independently or not. The test of infringement for a design patent is whether an ordinary observer (such as a customer) would find the patented design and the allegedly infringing design substantially similar.
Design Patents and Copyrights Provide Different Terms and Types of Protection
Copyright protection last for the lifetime of the author plus 70 years. Copyrights give the copyright holder the exclusive right to produce copies of the work and to distribute and sell those copies, to import or export such copies, to create derivative works such as adaptations, to perform or display the copyrighted work publicly, and to broadcast the work, if applicable.
A U.S. design patent provides protection for 14 years from the time it issues and gives the owner the right to exclude others from making, using, copying, or imported the patented design in the United States.
Design Patents and Copyrights Substantially Differ in Their Costs and Procedures
Registering your copyright carries a government fee of $35 and involves filling out what is usually a fairly simple form available on the copyright.gov website. It is very possible for an individual to submit an application for copyright application without the help of attorney, although I do recommend using an attorney, particularly if you have never done it before.
The Examination is generally straightforward and in most cases will result in a registration within a matter of months with no further communication with the Copyright Office necessary.
Filing a design patent requires preparing and filing a design patent application, which is a more complex task. The government fees are $230 ($460 for a large entity) for the application, plus a $430 issue fee ($860 for large entities). Many times the Examiner will initially object to the drawings or some formal aspect of the application and a further response will be necessary. The help of an attorney is highly recommended. Usually a design patent will issue within a year or two.
Did I leave anything out? Have any questions about the distinction between design patents and copyrights? Let me know in the comments.
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How can I confirm the date and patent of an invention,and who the inventor is? Please Respond as soon as you can. Thank You , Robert W. Spain
Robert,
I am not sure what your question is. If you know the number of a patent, you can pull it up on the Patent Office website here. This will tell you the date it was issued and the inventor(s). If you do not know the number of the patent, you can search for patents (or published applications) here or at the public search facility at the United States Patent and Trademark Office in Alexandria, Virginia.
Let me know if you need further help.
I have applied for a copyright of a design on dice. I see on the web there are thousands of designs existing. I called a man who designs and makes dice. He says he has a Design Patent on his designs. Will a copyright protect me?
thanks for your time,
Joe Hall
Joe,
I cannot give legal advice to non-clients. You will probably find out soon whether the Copyright Office considers your dice design functional and therefore non-registrable. As explained in this post, copyrights and design patents offer different scopes of protection. If both are available, which is best for you depends on what you need and how much you are willing to spend.