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Can this be copyrighted? or do I need to do something else?

Posted: Wed Jul 22, 2020 5:58 pm
by wildcheese
Hi All,

I am looking for some advice/insight into how to protect a graphic/print idea/brand that I am aiming to launch.

PLEASE NOTE: The description below is not the actual idea, but it does represent a 'form' and 'base' for each and every design/print.

Imagine a basic illustration of a train. It is important to note that the train is only illustrated using simple rectangles and there is nothing unique about the illustration. Anybody would be to able to create the same shapes and sizes using Photoshop or other editing software.

The train has 2 carriages (50 windows in each carriage) . This is the basis for the overall design/brand and will remain the same for an endless/unlimited number of variations/personalisation's of the next step.

Now... Imagine everyone in the world always lived to be 100 years old and not a day more. Each carriage window represents a year of their life and a star represents a sibling/child/grandchild being born.

So imagine the following

Customer A comes to me and asks me to put to a star in the 3rd window, a star in the 12th window and then the same star in the 34th/ 56th/ 88th and 91st.

That is their print/design complete.

Customer B comes to me and asks me to put to a star in the 3rd window, a star in the 26th window and then the same star in the 88th and 90th.

That is their print/design complete.

I also create a store item with a star in the following windows - 1,7,34,67,87,93.

The store item represents the life of a famous person (should anyone ever wish to buy such a thing)

REMEMBER - THIS IS A MADE-UP IDEA, it very loosely represents a variation of my idea, but I don't want to give the game away.

You may ask why I would want to protect this as a 'brand identity'. Well, my concept (as mentioned) has an endless number of variations, and I don't want anyone to be able to copy what may prove to be very popular.

Imagine I wanted to represent the life of 'Jenny Jones' (made up famous person) but someone 'stole' my EXACT base design and beat me to that famous person and thus stopped me from selling that particular design in my store.
This would be most annoying because the 'concept' was mine.

So.... my questions are.

1. Can I copyright/trademark this whole idea and stop someone using the base design, although it is only simple geometric shapes?

2. Will a copyright protect me and my 'brand' and stop anyone from being able to represent a persons life with the same 'Train/Carriage and Windows' concept?

3. If someone was to make the slightest change to the design (i.e - add a track under the train or a stripe down the side of the train) would that make this a completely new design? And would they be able to use this a whole new brand/concept? What if they slightly changed the ratio of the rectangle carriages?

This is long winded - so just one more question for the moment.

I know I am automatically protected under uk copyright laws for any design that is 'physical'. But imagine the following scenario for the sake of argument.
Imagine I design the life of 'Bobbby Green' (again... made up famous person) and publish this as purchasable item in an online shop.
I now hold the copyright to this image.
But... I then see my EXACT design for sale online (imagine they scanned it in or accessed the original photoshop file), but they had replaced the STARS with OCTAGONS.
Does this make it an entirely new design?

I apologise for this sounding so complex. If copyright is not the way to go here, I would be open to hearing of any suggestions which may be.



Re: Can this be copyrighted? or do I need to do something else?

Posted: Wed Jul 22, 2020 9:36 pm
by AndyJ
Hi David,

Thanks for the explanation and examples.

One of the fundamentals of copyright law is that it cannot protect ideas on their own, only the actual expression of the idea. The more detailed and out of the ordinary the expression is, the more likely it is to attract strong protection. Perhaps I can illustrate with an example of my own. I want to create a cartoon strip. I decide that my main characters will be a cat and a mouse for ever locked in conflict. That idea has virtually no novelty (think of Tom and Jerry, Itchy and Scratchy etc) and copyright will not protect the idea. I then draw the characters, and again they look a little similar to Tom and Jerry, but with a few tweaks: my cat is brown with white paws and the mouse has enormous ears, a bit like Mickey Mouse. These characteristics are still relatively commonplace and in the case of Mickey's ears, not original, so again little or no copyright protection would be likely. I then decide that instead of having cartoon backgrounds I will use photographs of real interiors and exteriors. We are now beginning to move into a more original form of expression. I then add in other characters details, like the mouse working as the head of a charity dressed in kaftan and sandals while the cat is a corporate banker in a suit and carries a rolled up umbrella. Now the expression of the idea has moved into much more original territory and again the copyright protection increases in respect of the novel additions not seen in other cat/mouse cartoons.

So returning to your example it sounds as if the way the train is depicted may be too simplistic to attract strong copyright which you can easily defend if others wanted to copy it. Adding the windows to represent years definitely extends the originality of the expression, but that might not be enough to prevent someone else copying the concept, perhaps by having a goods train in which each wagon represents a year of life or something like that. The more detail you add, the greater the uniqueness of your expression, the greater the chance you have of being able to use copyright to protect those details, forcing a potential rival to move well away from your expression (ie the actual way your artwork is presented) while still being able to exploit your basic concept of a vehicle with features to represent years or stages of a person's life.

You mention wanting to create a brand identity. This rather different. So Peppa Pig is a brand identity, but each Peppa Pig cartoon is also protected individually by copyright. Various elements of the brand are registered as trade marks which effectively prevent others from using the brand identity or something similar to it to sell their products. Brand identity is a complex web of attributes, including recognition of the appearance of the product, goodwill, an association both with the symbols (often registered as trade marks) and the ethos of the company behind the brand and so on. Consider the difference between the public's perception of a brand like Apple compared to Huawei. Both operate in the tech field and have brand awareness, but for different reasons. Once you have degree of brand awareness associated with you product, or your company if you produce a range of products, then you can use the common law tort of passing off to deal with rival producers who seek to exploit the appeal or popularity of your brand/product by making look-a-likes which confuse the consumer into thinking the rival's is actually your product. If you have ever shopped in Lidl or Aldi you will be familiar with the way some of the products they sell are in packaging which mimics the colours or look and feel (known as trade dress in the jargon) of well-known brands.

So concentrate on expanding the way your concept is expressed - the draughtsmanship, the idiosyncrascies of the train etc - and don't rely on the novelty of the underlying idea, and you will be in a stronger position to defend your product from copycats.

Re: Can this be copyrighted? or do I need to do something else?

Posted: Wed Jul 22, 2020 11:43 pm
by wildcheese
Hi Andy,

Thank you for your reply and your detailed breakdown.

In reality - there is no train or windows or stars etc etc, but I am so protective of my idea that I am trying to find the best way to explain the 'breakdown' of the graphic as close as possible.

I had tried explaining it to a solicitor (30 min free consultation), they said I required a patent and I am pretty sure that that is notthe correct way forward.
I have also been told that each final design is protected by design law, but (as previously mentioned), I could be pipped to the post for some designs, if the 'base design' is allowed to be replicated. But... if the 'passing off' law can eventually protect me, then hopefully that shouldn't need to be a worry in the future.

I do honestly believe that the overall design/concept is unique enough to be considered for strong copyright. The reason for this is that there are a minimum of 4 key design elements needed to produce each single design (3 of which always remain constant). Although these are simple geometric shapes - these all interlock in a particular way in order to represent a key piece of information. But I think I am thinking of this as an invention - the base design a unique engine design that needs to be protected. Without it, the car parts which are built around it, do not make any sense or have any purpose. But, if it cant be protected, anyone can build the same engine and create the same car.

I may well be worrying about nothing and my idea may bomb... but if this proves to be popular, I want to be protected.

The worrying part, is that it is the simplicity of my design which I think makes it appealing/visually attractive - and if complexity is what is required to protect me, then I may not stand a chance.

However, if it came down to uniqueness and originality and the way in which these shapes interlock - I may. I would argue that these are idiosyncrasies which would possibly been enough in their very very basic form.

I am quite certain that people will try and 'rework' my idea. But as long as they can not carbon copy the basic structure of the design, and attempt to 'pass off', then I will rest a little easier.

Just moving off slightly, before I finish rambling.

I have researched trademarks a little also, as I have already designed the logo (which incidentally incorporates a key element of the 'base design') and purchased the domain name and variations of it. There is no ltd company using the name I want to use, and I have searched high and low and I am as certain as can possibly be that there is nobody currently representing what I want to represent in the way in which I want to represent it.

If you know anything about trademarking, maybe you could advise if this is a sensible move also?

I am also concerned that if I do not register the name as a ltd company, somebody else could do this and trade off that name even if I own the trademark/logo/domains...

Good Luck understanding all of the above! - Tell me to bugger off when needed.


Re: Can this be copyrighted? or do I need to do something else?

Posted: Thu Jul 23, 2020 7:40 am
by AndyJ
Interesting that the solicitor you consulted suggested patents. To claim a patent the invention needs to be new, involve an inventive step and be capable of industrial application; it also cannot fall into one of the excluded classes: these include scientific theories, mathematical methods, aesthetic creations and computer programs. What is more it's a long and technical process to apply for a patent which is best done with the professional assistance of a patent attorney. This makes it comparatively expensive. I dismissed this as an option because, using you train example, it sounded like your idea was an aesthetic creation.

By all means register your business name and logo as trade marks. This won't provide specific protection for your actual product, but it helps with protecting your brand. There is a lot of overlap between trade mark protection and passing off. The beauty of the latter is that you don't need to register anything for passing off to be applicable. It is quite a flexible concept, although the courts have developed a few 'rules' to help them decide which passing off claims are successful. These were explained in the link in my last reply so I won't go over them here.

It is a fact of life that if you come up with a successful idea someone will want to jump on the band wagon. Indeed the market place as we know it depends on competition to remain healthy and good value for consumers. That's why monopoly rights such as patents have a fixed lifetime (25 years in the case of patents) so that the inventor can make a fair profit from his/her invention before the idea becomes something anyone can exploit.

You mentioned design right. This comes in two flavours: registered and unregistered. Both protect the specific appearance of a product but unregistered design right excludes any surface decoration from protection and has a shorter lifetime. Registered design is explained here. Both trade mark and design registration are relatively straightforward and inexpensive (compared to patent applications), although design right can't cover a process per se, and the design of each individual product customised for each client would need to be registered to gain any worthwhile protection, and so I'm not sure how practical this would be for your idea.

Returning to copyright, I don't want to give the impression that your artwork won't be eligible for copyright protection; it almost certainly will if it is the product of your own imagination and skill as an artist or graphic designer. It's just that the protectable elements may be hard to define if you ever need to make a claim against someone you think is infringing your work. It will be great for preventing facsimile copying (ie metaphorically just sticking your work in the photocopier and selling off the copies). But generic versions of the overall idea will be more difficult to prevent. Make sure you put copyright notices on the advertising, and the product itself if that's practical. This is not a legal requirement but it may have some deterrent value.