Consumer products and IP (Part 6): deriving a copyright for consumer products
Although other forms of intellectual property tend to be most relevant to consumer product makers, copyright ownership is also an important consideration and can play a key role in product development and protection. Copyrights protect artistic works, and given the creativity that goes into product design, there are many aspects of a consumer product that can potentially infringe another person’s copyright. Failing to understand these rights exposes companies to nuisance claims and pricey litigation. But keeping copyright issues front of mind can help consumer product companies from running into costly litigation.
What is a copyright?
In the United States, copyrights cover any original work of authorship fixed in a tangible medium. Covered works include (as relevant to consumer products):
- Pictures, graphics, movies, and sculptures
- Any derivations thereof
In the consumer products context, copyright protection could extend to any of the following examples:
- Jingles emitted from toys
- Product instruction manuals
- Software codes in a device’s mobile app for use with a device
- Fabric patterns on clothing
- Jewelry designs
- Decorative engravings on flatware or furniture
- Storylines for children’s books
- Educational movies
However, ideas, procedures, processes, systems, methods of operation, concepts, symbols, and discoveries are not protected by copyright. Additionally, the work must (1) be an independent creation and (2) have some modicum of creativity. As applied, this standard is relatively low.
Copyright law also carves out an exception for “useful articles.” This means an author cannot copyright something meant to be functional. For example, this could cover something like mannequins in storefronts. Typically, whoever created the work owns the copyright, but the issue becomes more complicated in the case of “works for hire” and employee creations. Companies should consult legal counsel if attempting to understand or acquire rights in either situation.
How to obtain a copyright for consumer products
Similar to trademarks, copyright protection occurs automatically once a copyrightable work is fixed in tangible form. Historical formalities (such as publication or using the © signal) are no longer required, but doing so may protect against innocent infringement. Although not required, registering a copyright can provide additional advantages and protections. A copyright registration:
- Establishes prima facie validity;
- Allows claims to be brought in federal court; and
- Makes available statutory fees and damages.
Any work created after 1978 retains a copyright for the author’s life plus 70 years. Some exceptions do exist, such as work-made-for-hire copyrights lasting the later of 95 years from first publication or 120 years from creation.
Protecting consumer products through copyright enforcement
Copyright owners receive the exclusive right to reproduce, create derivatives of, distribute, perform, display, publicly transmit, as well as import works. If an unauthorized party infringes any of these rights, a copyright owner may be entitled to:
An infringer may also face criminal consequences.
An exception to copyright infringement is a claim of fair use. A person or company may not be liable for use of copyrighted material if the use is for criticism, commentary, news reporting, teaching, or scholarship. Although the fair use defense is well known, the boundaries of what constitutes “fair use” are not well defined and are continuously evolving as courts interpret this statutory exception. As an additional enforcement mechanism, the United States recently established the small-claims Copyright Claims Board.
Key considerations for copyrights and consumer products
The law surrounding copyrights and fair use is dynamic and uncertain, so consumer product companies inherently face exposure to—and can protect against—copyright infringement claims. Consumer products companies should exercise care in designing products and product components, including instruction manuals, creative patterns, software code, and other creative works to ensure they are creating original works.
Marketing materials are also ripe for potential copyright infringement issues since they typically involve text, photography, video, music, and/or original artistic designs. When working with third-party advertising agencies, graphic designers, photographers, and other content creators, companies should ensure they have acquired all rights in the deliverables, including copyrights, by written agreement. Copyright protections can also provide some advantages. Unlike patents, copyrights are automatic, meaning companies can license rights without the same administrative barriers. And if infringement occurs, companies can receive similar damages as available for patents and trademarks or receive statutory damages if actual damages may be minimal. Overall, copyrights offer another means for consumer product companies to solidify marketplace influence, restrict competitors, and generate revenue.