An amendment to copyright law taking effect last week means that parodies will now be an exception to copyright infringement in the UK – but only if they are funny. Plus, under the Intellectual Property Act 2014, designers can now more effectively protect the IP of their 3D designs, and they own the IP of work they produce on commission by default, unless it’s explicitly assigned. These changes are helpful in that they promote a more modern creative environment, but also mean that anyone commissioning a design must have an agreement in place to set out ownership rights.
The new exception to the Copyright, Designs and Patents Act 1998 outlines that copyright material may be reused “for the purposes of parody, caricature or pastiche” without the permission of the original artist, but only if the final product of using the material is of sufficient comedic value.
This means that “mash-ups” which take copyrighted material and reproduce it for comedic effect are now legal and will not be taken down – as in the case of Newport State of Mind, a video parody of the famous Jay-Z production Empire State of mind and the subject of litigation brought by EMI.
However, this new development leads us to believe that if a parodist is taken to court, it will be up to the judges to decide whether the spoof video is in fact funny, or an infringement of copyright material. Critics of the amendment have expressed concern that judging comedic value may not be a task best suited to judges.
The Intellectual Property Act 2014 has implemented some important changes concerning the protection of design rights. Design rights protect rights of designs that cannot be protected by copyright, trademarks or patents.
They are very useful for protecting creative development in all areas of 3D design, such as furniture, architectural features, homeware and packaging.
A good example is the recent case of the innovative ‘Trunki’ children’s suitcase. A trademark would protect the brand, a copyright would protect the surface design and a patent could protect a unique technological feature. However, what will protect the 3D design of the suitcase itself?
The Intellectual Property Act 104 introduces a new system, making it easier for small companies to protect their design rights.
A new service has been implemented which means that parties will be able to receive a non-binding opinion from the Intellectual Property Office, as to whether a design registered by a business is unoriginal, before this is challenged in court.
Infringement of a registered design is also now a criminal offence. This means that a small business with a registered design can report any unoriginal design copies to the police, and also pursue their own action in court.
This has given design rights the same status as copyright and trademarks.
Rights for designers
As well as increasing design right protection, the rights of the actual innovators and designers have also been given additional protection.
Now, when a business commissions work from a third party, the designer will become the owner of the intellectual property and design rights as opposed to the business that commissioned the work. The business will not own the design, unless this is specifically agreed prior to the design taking place.
A recent famous example of a dispute in this area is that of the iconic Star Wars Storm Trooper helmet design. A member of the original design team, Andrew Ainsworth, reproduced the helmets to the public. The Supreme Court in the UK ruled that the helmet was covered by design rights (which had expired) not by copyright, giving Ainsworth victory over Lucas film.
What does this mean for your business?
The new Act brings design rights that have previously been slightly overlooked into the spotlight.
All small and medium businesses that work in design should think about design rights.
In the case of commissioned work, ownership of design rights and, in fact, any intellectual property should be clearly agreed in advance, to avoid any legal dispute or doubt.
Only a design right can protect a 3D design and the process is relatively quick and inexpensive compared to other intellectual property rights such as patents.
And unlike copyright material, if effectively covered by a design right, a design cannot be legally reproduced – even with added comedy value.