Is Your Intellectual Property Protected? Maybe Not As Well As You’d Like.

Copyrights, holding them, and defending them is a sort of sticky wicket, especially in the decorative home furnishings industry.  Initially enacted by Congress to protect printing, copyright protection has evolved to become something of which most are aware, but also something that offers very little actual protection to the copyright holder.  The Constitution of the United States defines copyright protection as so:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Pay particular attention to the “useful arts” part, as that’s is where the stickiness comes into play for designers like myself.  While I’m going to save my epistle on the ins and outs of US Copyright Law for a later post, what I want you to take away from this short lesson is the notion of what constitutes a “useful art”.  All artistic endeavors fall under copyright law in one fashion or another, but I promise you that it’s not in the way that you think.  A general rule of thumb for determining what is copyrighted and what is not, is that only the EXPRESSION of the art is what is protected by copyright law.  Remember where I mentioned that Congress enacted copyrights to protect printing?  Well that’s still the case today.

I can write a song and write it down on sheet music, record it on a CD, and play it on the radio and make money from that venture.  So how is it that a cover band can then learn my song and play it in a Market Street bar on a Friday night and make money for themselves?  It is because the expression of my art covered by copyright is limited to the sheet music and the CD (I’m ignoring things like ASCAP for the purpose of my argument here), and not to someone hearing my song and copying it.  The same applies to my designs.  The artistic expression of my design is all that is protected by copyright law, since technically, I am not making useful art.  The catch here is that I’m not reinventing a lamp, or a table, or a chair.  My lamp works the same as your lamp, the same as their lamp, and the same as a lamp designed 20 year ago.  What we’re protecting here is the expression, or the styling of the lamp, what makes it unique.

Some of you may now be thinking “What if I’ve created a completely new way of lighting, or a seating system that the world has never before seen?  Don’t my designs get protected from copy?”  The answer is of course a resounding yes, but that introduces our friend the patent, and that’s not what we’re discussing today.  Which might then have the intelligent reader asking “But what if I’ve created a form that has never been created before?  Don’t I get protection from copy?”  Again, you’d be given a resounding yes, but now we’re talking about design patents, and they’re another beast all together.  The takeaway is this:  patents are expensive and time consuming, copyrights are not.  If you’ve created something, you basically  have a copyright (with limitations, but we’re ballparking it here)

Now getting back to the notion of the expression of a design and why it’s so tricky with furniture design.

If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. They must be separable from the functional aspect to be copyrighted.

Notice the clause about the aesthetic features being separable from the utilitarian features.  You can imagine how this might cause an issue for a designer with a minimal aesthetic, such as myself?  Basically, the law is telling you that a carved lion’s head on a chair back is copyrightable, but the chair is not.  It’s telling me that a porcelain cherub on a lamp is copyrightable, but the lamp is not.  It’s an important distinction to recognize, that non-sculptural designs are largely not protected under United States Copyright Law.

So then, I’ve told you that story to tell you this one.  Here is a prime example of the lack of protection provided to designers such as myself on protecting our works that happened to me at a job I used to have:

Lamp Coincidence? Seems a Tad Shady.

Washington Post
May 7, 2009

J.C. Penney knows a good thing when it sees it.

Last month the national chain introduced the Dipak floor lamp as part of its new Artesia home furnishings and accessories line. The Dipak looks almost identical to the Montaigne floor lamp from Niermann Weeks, a Maryland-based company that sells high-end furniture and accessories exclusively to the design trade.

The Montaigne lamp, priced at $2,910, is constructed of steel and has a distressed gold-leaf finish. It comes with a custom silk drum shade. The design was inspired by a fragment of a wrought-iron garden border found at a Paris flea market, according to Bill Gardner, design development manager for Niermann Weeks. The Montaigne was introduced in 2005 and ever since has been the company’s most popular lamp.

J.C. Penney’s Dipak lamp is a little taller and a little chunkier, and much less expensive. The list price is $240 (though it’s now on sale for $120). It has a steel base and an antique silver-leaf finish and comes with an off-white drum shade. Assembly is required.

J.C. Penney denies that the inspiration for its lamp came from the Niermann design. Debra Schweiss, trend director at J.C. Penney, said in an e-mail: “Through a collaborative effort between J.C. Penney’s internal trend, design and product development teams, the Artesia collection was created and introduced in April as a home decor choice for customers desiring a global design aesthetic.”

We’re not buying it.

Terri Sapienza

Link to the original article here

Niermann Weeks's Montaigne Floor Lamp

Montaigne Floor Lamp, by Niermann Weeks

Niermann Week's Montaigne Table Lamp

Montaigne Table Lamp, by Niermann Weeks











J.C. Penny's Dipak Floor Lamp

Here is the Dipak Floor lamp from J.C. Penny’s













Here is the amazing part, not only is this legal and we had no recourse against JCP, but we didn’t even know it had transpired until the Washington Post called me one afternoon for comment.  Of course my only response was “Huh?”  These lamps were for sale in JCP and had been for months.

Being that this is a topic near and dear to my heart, I plan to follow up with a longer discussion of Intellectual Property protection in general.  In the meantime, my fellow designers, watch your work closely and don’t be too free with whom you share it until you’ve at minimum, spoken to a lawyer.