If you’ve ever wondered about artist’s copyright and how you can find your own unique voice, this post is for you! Spoonflower Artist Community Manager Jessie Katz Greenberg recaps our Spoonflower webinar with intellectual property attorney Karineh Khachatourian and artist and educator Katy Dika, sharing nuggets from both of their helpful presentations below.
Note: All information shared in our webinar and in this post is for educational purposes only and is not legal advice.
Jessie: As Spoonflower’s Artist Community Manager, my favorite part of this job is bringing educational opportunities to our artists, which is why I especially enjoyed hosting our Artist Webinar, Copyright for Artists: How to Create Unique Designs & Protect Your Work.
This hour-long webinar was filled with thoughtful information from our two speakers, intellectual property attorney Karineh Khachatourian and artist and educator Katy Dika. Karineh and Katy had so much valuable knowledge to share that we knew we needed to recap it for you here.
Karineh Khachatourian on Copyright
First, we learned about copyright law from Karineh Khachatourian. Karineh is a first chair Intellectual Property litigator and strategist, currently serving as Managing Partner of KXT Law. Her litigation and counseling experience includes utility and design patent infringement, licensing and other IP contract disputes such as inventorship and ownership issues and trademark infringement. In short, through her experience and vast network, Ms. Khachatourian solves IP problems for her clients. She is also involved with many organizations in Silicon Valley focused on the advancement of women in leadership, including Watermark, Leading Women in Technology and Chips.
What is a copyright?
Copyright is a monopoly on a certain type of work for a certain amount of time. Original works of authorship are protected under copyright. This is a very broad category that could include art, literary works, musical works, choreography, graphics, sculptures, movies, architecture, photography and more. Even compilations, source code and computer programs can be copyrighted.
But what does it mean to have a monopoly? It means you have the exclusive right to the original work of authorship, protected under the law. You have that right for a certain amount of time, not forever.
How long does a copyright last for?
As with most law, this is a frustrating, “it depends.” It can range from 70 years to 120 years, depending on how many authors there are. The extent of copyright protection is even affected by death. If the author dies, the protection is 70 years from the death of the author. For example, the original Mickey Mouse artwork will enter the public domain in 2024. After a copyright expires, the original work goes into the public domain for others to use.
Do you have to register for a copyright with the Copyright Office for protection?
No, the work in question just needs to qualify as one of the categories to be protected. You technically don’t have to include a copyright symbol (©) or the word copyright with your work, but it is a good practice to do that to give notice to the world that your work is protected. The main reason people file with the Copyright Office is because it’s necessary to file a lawsuit. You cannot file a lawsuit without filing a copyright with the Copyright Office.
Exceptions to Copyright Protection
An exception to copyright protection means that the copyright holder does not have a monopoly. This is true if someone is using the work in a way that qualifies for the “fair use” exception, which can apply when the person is using the work for educational, scientific, or historical purposes, rather than for commercial purposes. The fair use exception can also apply when the person using the work can show they were using it as a form of satire or parody.
Not everything is copyrightable. Familiar symbols, such as a plus sign (+) or exclamation point (!), cannot be protected under copyright. This is also true for certain designs, coloring, or single letters. For example, a single color is not copyrightable.
How might you get into trouble with copyright as an artist?
Again, this depends. The legal test for copyright infringement includes fact-based analysis to determine whether a design is substantially similar to the protected aspects of a copyright holder’s design. In this case, “substantially similar” basically means that the ordinary observer would think the two designs look the same.
Legal Resources for Artists
There are a lot of resources that provide basic information and pro bono services for the creative community. Some of Karineh’s favorites are:
International copyright law is unique to each country, but some of the organizations above may also be able to point you in the right direction for international copyright questions.
Katy Dika on Finding Your Unique Voice
Next, we learned tips for gathering inspiration and creating unique work from Katy Dika. Katy is a surface designer and educator who has poured her love of patterns into her professional work for nearly 20 years, designing in an array of styles and subjects to fit her clients’ needs. She has developed surface design collections for brands such as Iris Apfel, Michael Graves Design Studio, Talbots, Coldwater Creek and numerous others. She regularly shows her work at Surtex, BluePrint and Showcase. Katy shares her industry knowledge through her Rhode Island School of Design & Lasell University online courses, her private coaching practice and soon through her upcoming Domestika course.
Surface Pattern Copyright in the Apparel Industry
A garment can be tough to get a design or utility patent for, and in many cases, trends move so quickly that it is not worth getting a patent.
The one aspect of a garment that is easily protected is the print. As we learned above, it’s easy to protect a surface design through copyright. If a company can knock off a garment body, but the pattern on the fabric is protected, you can see why surface pattern design is such an important part of the apparel design process.
Surface patterns can be a way to differentiate brands, refresh existing products, and even convince consumers to buy multiples of the same thing. This is true for other industries outside of apparel as well.
The Clean Room Drawing
Early in her career, Katy learned about the concept of the clean room drawing. There are four rules:
- Pull together your inspiration
- Study it for as long as you’d like
- Put it all away
- Start creating
Find What Inspires You
It’s important to get out into the world and find your own inspiration. Ignore what other surface design artists are creating and dig down deep into what makes you tick. For Katy, it’s bugs! For you, it’s probably something completely different. Visit a museum, explore the woods, read a book, roam a flea market or do whatever gets you excited about finding inspiration.
Study the Designs You Like (and Dislike!)
Even with all the inspiration to be found in the world, there will be times when you are feeling inspired by an existing piece of artwork. When finding inspiration in existing work, it is important to spend time studying and dissecting it.
Over time, Katy built the following list of observation points that she could use to evaluate her inspiration. This list can be used as a tool to discover what you like and dislike about a particular design. Taking detailed notes about one, or better yet, many pieces of inspiration, will help you find the winning formula for your own art.
If the subject matter is speaking to you, jot that down as a to-do list of prints you can create one day.
Evaluate what you like about the color palette. Is it high contrast or muted? Are there pops of color or unusual neutrals? Does it follow a traditional color scheme like monochromatic, analogous, or complimentary? Maybe you are drawn to the amount and proximity of the colors. Take note of all these details and use your favorite medium to create a record of the color palette in your sketchbook or a digital document to save for future use.
Make note of if the layout is a straight repeat, half drop or something else. Is it simple or complex? Is the spacing open and airy, or densely packed? Do motifs overlap or intertwine? Don’t forget to observe the negative space.
Is there a texture or lack of texture you like? Can you tell what medium was used, and do you like that?
Is the scale large or small? Is there contrast in the scale of different objects, or do they all feel the same?
You don’t need to stop there! Closely study all aspects of your inspiration and take detailed notes about what you like. This process can be used for all types of inspiration from an existing surface design, to a feather you picked up at the park.
Be sure to watch the webinar replay at the bottom of this post (minute 28:05) to see Katy walk through how she used this process while designing the Atlas Staghorn Bandana, her interpretation of the classic bandana showcasing her love of insects and flowers. 15% of the profits from this bandana benefit the Xerces Society for Invertebrate Conservation.
Remember That the World Needs Your Original Work
By using Katy’s process, you can learn more about the things that inspire you which can help inform your work. The world needs you and your original art, not just your version of someone else’s trending design. Appreciate the work of others but continue to dig deep within yourself for inspiration so you can create your own unique work that inspires.
Creative Resources for Artists
Cultural Intellectual Property Rights Initiative for information about cultural appropriation as it relates to textile design.
Frequently Asked Questions About Copyright
and Finding Your Own Voice
We ended our webinar by asking Karineh and Katy to answer our artist community’s most common questions about copyright and finding inspiration.
If an artist wants to sell work based on drawings of movie characters, for example, Star Wars, is this copyright infringement even if they’ve created their own image?
Karineh: The short answer is sadly, yes, it probably is infringement. Katy’s presentation about the clean room technique is a great test, because you can be inspired by something without creating something substantially similar, and a great way to defend your work is to be able to show your design process.
Pro Tip: From our point of view at Spoonflower, if you have to ask yourself if it’s too similar to someone else’s design, it probably is.
How important is it to register copyright with the U.S. Copyright Office? This can be an expensive endeavor for artists who aren’t yet making a lot of money from their art.
Karineh: My personal opinion is that this really depends on your circumstances and resources, but in many cases it is not necessarily that important. You can still have copyright protection without formally registering. If you’re just looking to protect your work and not enforce the law then it can be fine to put a copyright symbol (©) or statement on your work. You can add that notice even if your work is not registered.
There are pros and cons to both options and your decision to register depends on your unique situation.
For an artist located in Canada, but their agent and most clients are in the U.S., is it better to register copyright in Canada or the U.S.?
Karineh: I would say to file in the U.S. because Canadian protection does not expand into the U.S., and if that’s where most of your market is, that’s where I would file. You may also be able to file in both places, depending on treaties. For example, if there is a treaty between Canada and the U.S., there might be an easy process to file in both countries.
What’s the best way to stand out in a saturated market?
Katy: It usually comes down to being original. To me, it’s all about really honing your style, so that when the general public sees the work, they start to recognize that it’s you. Whatever you can do to differentiate your style from other people. You can use some of the processes in this webinar, but really you can start to create your own style guide for yourself. Put some parameters on the type of work that you will do. Are there certain types of color palettes you’ll always work in? What subject matter do you like to use? If you are really trying to be known for your style, then it’s all about honing that style. And of course, practice. They call it an art practice for a reason, you can’t get better by thinking about getting better, you have to work at it every day, every week, etc. That’s my biggest tip.
When do you start designing for a specific season, and how do you find inspiration when you are having to design far in advance?
Katy: Most companies and brands usually research one year out. If you research Valentine’s Day in the weeks leading up to Valentine’s Day you will see what is in stores, what is online and in your social media feeds, and that’s when you can start accumulating the inspiration you need for that season. If you are working 12 to 14 months out, that is the right time to find inspiration for seasonal work.
What’s the most common mistake you see artists make when seeking to protect their artwork?
Karineh: That they don’t put a notice anywhere that their material is copyrighted. A notice can include a copyright symbol (©) or a line about their work being copyrighted on an artist’s website and social media, wherever they are sharing their work, to let the community know that it is protected.
If someone has an old piece of fabric or wallpaper from the 60s or 70s (unknown designer/company) that they’d like to create a reproduction from, do they need to worry about infringement, or is this considered public domain?
Karineh: The monopoly could last anywhere from 70-120 years. If it’s a fabric design, it’s likely expired if it is from the 1920s or earlier. Mickey Mouse for example, the original design was created in 1928 and it expires in 2024. When you’re looking to be inspired by something that someone has previously done, I would do some due diligence, asking questions like “is the company still around?” or “are there similar designs in the marketplace?”
If you are just starting to design fabrics and are copied by a company outside of the U.S. and can’t afford an international copyright attorney, what other options do you have as an artist?
Karineh: There are some great pro bono resources for artists. I don’t want people to feel like because of differences in financial abilities that you don’t have resources. I’ve named four (above) and there are so many more out there. Law is really dedicated to helping artists and creativity, so there are a lot of resources. I hope if there is anything you get out of this presentation, it’s that there are resources for you, and I hope you reach out and get them.
If an artist uses the same technique as someone else, but creates a completely different art piece, is this considered infringement?
Karineh: Not of a copyright, but possibly infringement of a patent. It just depends.
This statement is inaccurate:
“The main reason people file copyright with the patent office is because it’s necessary to file a lawsuit. You cannot file a lawsuit without filing a copyright with the United States Patent and Trademark Office. ”
You do not file copyrights with the USPTO. You register them with the Copyright Office, which is a part of the Library of Congress.
Also, there are other forms of IP, such as rights of personality, which vary from state to state and country to country, as well as special categories that are covered by protections other than copyright, patents or trademarks. It’s a rather complicated rabbit hole.
Thank you for your comment, we’ve updated the post to refer to the Copyright Office. IP is indeed a complicated topic. We hope that this post can act as a brief overview while providing resources to artists that they can use to find more information based on their specific situation.