Can a diary design be copyrighted?

'Is it legal', 'can I do this' type questions and discussions.
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bluelotus
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Can a diary design be copyrighted?

Post by bluelotus » Sun Jul 03, 2016 6:06 pm

If I buy a rather "artful" diary on Ebay (retro looking, with keys and lock and all that fancy stuff) and then use it in my film in which someone is writing in this diary, could I be infringing on the copyright owner of the designer of this diary?

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AndyJ
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Post by AndyJ » Sun Jul 03, 2016 7:37 pm

Hi again bluelotus

There are two different rights to consider here: design right and copyright.
Design right is not affected because you are not making a copy to the design [drawing] of the original.

Copyright can be infringed by copying a substantial part of a copyright work in a still or moving image, but a diary per se would not be a copyright work unless it was a work of artistic craftsmanship. This usually means the object is made by hand and has to be made with the intention that it is 'artistic' and not just practical. It therefore sounds as if the diary you want to use could fall into this category, unless you are reasonably sure that it has been mass-produced rather than hand-made. Note the difference between 'hand-made' and 'hand-assembled'.

However even if it is an artistic work, it is clearly also intended to be used as a diary, and therefore filming someone using it in that manner is likely to fall within the incidental inclusion exception that I spoke about in your previous thread. This would apply as long as you didn't spend much time filming the outside where I assume the arty bits are to be found. Say you film as your diarist goes to a desk or table, pulls the diary towards him/her and opens it in order to start writing the entry for the day, then I am reasonably confident that that would count as incidental inclusion.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

bluelotus
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Post by bluelotus » Sun Jul 03, 2016 7:44 pm

Hi,

Thanks again for your very informative and helpful reply! Copyright can be extremely confusing and it is good to hear the opinion of someone who has experience with this.
Actually I am quite certain that this is a mass-produced diary, it is sold not just by one seller but by dozens of seller on Ebay and it comes from China as well. So, it might have an "artistic touch" and look retro, but i highly doubt it was handmade. Even though, coming from China, I cannot be sure.
Probably I will just use a plain journal without decorations just to be on the safe side.

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