Design & Author’s Rights (Part 1)

EPGD Law Entertainment Law

Intellectual property consists of four regimes of law that govern different aspects of human creations – that’s why it is called “intellectual” property; they are born from the intelligence and imagination of human beings. These laws are copyright, trademarks, business secrets, and patents.

What do you need for a Copyright?

When we talk about copyright, we are talking about the rights granted to “artistic and literary works” – expressions of an idea set in a tangible medium. Two main components emerge from that definition: (1) the expression of an idea and (2) fixed in a tangible medium.

The first, expression of an idea, refers to the artistic and / or literary work – a novel, drawing, sculpture, photography. The second, fixed in a tangible medium, means giving some kind of permanence to the work through any means, so that it can exist and be perceived. It can be ink and paper for a writing or drawing, wood or stone for sculpture, recording on photographic tape for a photo.

Design objects, whether pieces of furniture, fashion items, mobile applications or any other category, are certainly set in tangible medium. These are brought to life and given permanence through physical and / or technological materials. Then it may be asked, do they not have copyright protection? The short answer is no. While design objects are fixed in tangible mediums, they do not constitute expressions of ideas, as required by law. They are not “artistic and literary works.”

What is the Difference Between art and Design in Regards to Copyright?

If you ask a designer, he or she will tell you that there is a crucial difference between design and art. That difference is typically in the utility of the design object. The purpose of the design is to solve a problem, and that this solution be intuitive and improves processes, and makes things more beautiful. Hence a duality between the function and the aesthetics of the design object. As with a shoe, watch or t-shirt, functional elements and aesthetic elements coexist in its design.

Examining the design in the light of the definition of copyright, “the expression of an idea set in a tangible medium”, we realize that design goes beyond being the expression of an idea. The design, in addition to expressing the idea, has a functional component. Due to its functional nature, the design is mostly protected by the patent regime and not copyright.

For an object, process, design and / or formula to have access to the protections granted by patents, it has to meet three requirements – be novel, useful and not obvious. While copyright protects artistic and literary works, expressions of ideas set in a tangible medium; design consists of solving a problem in the most efficient and beautiful way. For this reason, design objects are generally not protected by copyright and are governed by the patent regime.

However, there are portions and design processes that can be protected by copyright. For example, plans of a building, or sketches or drawings of a car – any expression of an idea set in a tangible medium. But only that particular expression is protected. If you make a sketch of what later turns out to be Samsung’s new smartphone, only the drawing is protected, not the cell phone that is then developed.

If you would like to read the second part of this blog, click here to continue.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*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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