Design and Author’s Rights (Part 2)

EPGD Law Entertainment Law

What is an “Expression of an idea” and “Fixed in a Tangible Medium?”

Although the smartphone is a “tangible medium” according to the definition of copyright, it is not an “expression of an idea” – it is a useful and functional object. Now, if you take that same smartphone object, and transfer it to an art gallery, and display it as a work of art, that smartphone object becomes the expression of an idea set in a tangible medium. The expression of the idea, being the artist’s intention – the artist’s purpose in creating that work. If we assume that the work is called “post post post modernism”; that would be the expression. The tangible medium is then the smartphone. That conversion is enough to change the nature of the smartphone, from a useful object to the expression of an idea. That work would be protected by copyright. But only the work, and not the useful elements of the smartphone that inspired the work.

To conclude, it should be reiterated that the design object or process, being useful, is governed by the patent regime. However, preliminary expressions of that object (sketches, models, notes) to the extent that they are expressions of ideas, belong to the copyright regime; but they only protect that expression, and not the design object.

In addition, artistic expressions set in the final design object, which have no functional component, such as a drawing on a can of soda or the label of a soap package, are governed by copyright. Then in that case there would be an object of design functional components protected by patents, and expressive components protected by copyright.

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*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Silvino Diaz

Silvino E. Diaz’s practice ranges from Civil and Commercial Litigation to Entertainment and Intellectual Property Law. Silvino has earned a reputation as one of Puerto Rico’s foremost advocates for independent musicians and artists. As a result of his sustained commitment to creative industries, he was named Professor of Intellectual Property Law at Atlantic University College (Guaynabo, PR) – the Caribbean’s leading digital arts institution – where he spearheaded the “Introduction to IP” course for both the graduate and undergraduate programs, and was appointed by the Office of the President to develop an Intellectual Property graduate curriculum, where he served until moving to Miami in 2017. He is the founder of the service known as Starving Artists, where he offers innovative business and legal counsel for artists and creatives.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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