Week Three: Legal and IP Frameworks Comparing Different Case Studies, Media Use and Equity Ownership
Updated: Aug 21, 2021
This weeks lecture was in the form of a podcast with Alec Dudson interviewing Kevin Poulter and Jonny Mayner from Freeth LLP.
How should a graphic designer make themselves aware of any naming and copyright issues, ideally before getting caught out by them?
Check what you're putting together doesn't cross any lines in terms of infringing someone else's rights.
Check the UK IPO, the UK intellectual property office.
With copyright issues, just read and think carefully when drawing inspiration.
When creating your own creation that is wholly yours, you should document your development.
In terms of documentation, would it be records of contact between you and the client? How would you shore that up from a legal perspective?
The more, the better!
Emails with dates.
Keep emails and documents tidy and organised.
Do emails stand up alone, or are they more referred to as a substantiating piece of evidence?
Depends on the situation.
Having a written contract in place has more clarity.
In terms of evidence: emails, date tags on digital files.
What are the steps graphic designers should take to protect their IP? When should that come in?
It has to be part of the whole process.
It's important to know where everybody stands concerning ownership of the work.
What any third-party client can/can't do with the work.
Who owns the rights if it's a collaborative process?
Have a clear contract.
It's important to make those decisions (above) right from the start and get it in writing.
Make it clear as to who owns what.
Will it be used over and over again? Or will it be a one-off and a one-off payment?
In regards to the Tokyo 2020 Olympic logo, should you run with something that's already tainted?
How has the 'call-out culture' on social media impacted these issues from a legal standpoint?
Public opinion has always been there, but social media makes it global.
You can't limit where images will go on the internet and on social media.
There could be a weakness of the claim involved or a lack of funds to pursue it, so another action someone could take against you is to 'name and shame' through social media platforms.
An example of this is the Tokyo 2020 Olympic logo, but it happens time and time again.
Could we even argue that by catapulting themselves into this debate, and I think it was the designer of the Liege identity that brought this up, they're actually benefiting from this massively?
Absolutely, the media loves a good David and Goliath story narrative.
That's actually what the case is in these instances.
Is the downside of posting things online that you open yourself up for someone to create something similar to what you've created?
By way of analogy to music copyright cases, there are only so many notes.
There's not an awful lot that's new under the sun.
That's why it's critical to preserve and maintain your work in progress records so that you've got a case for independent creation.
Suppose you are working as part of a small studio, or more commonly, as a freelancer. In that case, it's imperative that you fully understand the nature of that contract and what you're offering up in terms of responsibility should anything go west or should anything get challenged by a third party.
I think the area around third party infringements or infringement of third party IP is where you should be addressing your attention.
'Call-out culture' could lead to reputational damage between clients and creatives.
Regarding plagiarism claims, what happens to designers, where do they stand when the client has been challenged for plagiarism?
Money changes hands.
Sometimes you just pay the price you need to pay because it's more cost-effective than dragging everyone through the court.
*Discussing illustrator Tuesday Bassen and Zara clothing 2016 case study*
Sometimes things get copied because there's a demand for them.
People should be surprised if they share work on social media and it gets copied.
Direct copy is what is being protected, not something similar.
*Discussing Mr Bingo case study*
Infringing material was taken down.
Not a lot of financial remedy.
How bad can it get if you copy something?
It can get pretty nasty.
Which areas of copyright and the ethical and legal factors do you find are most commonly experienced by graphic designers?
In reality, the sorts of issues that will probably arise day-to-day for graphic designers won't generate substantial legal costs.
Product design could lead to higher financial costs due to lost sales.
What are the positives of legal protection as a designer?
What are your rights?
The UK IPO website.
Arm yourself with knowledge.
Know how to use the information.
Read and understand contracts.
Apply the knowledge in the right way.
The logo for the 2020 Tokyo Olympics Games
The logo for the 2020 Tokyo Olympics Games was scrapped after allegations that it was plagiarised. A Belgian artist had complained that his design for Theatre de Liege was stolen. The Tokyo Olympic logo designer Kenjiro Sano had admitted copying online material for a previous project, Japanese media reported. The Olympic logo was then scrapped after it was believed that it had lost public support.
It's interesting looking into this case after listening to the lecture. The logos do look very similar, but there are also evident differences. In addition, the logos are for two completely different causes, and I feel it would be hard to confuse them. However, there is enough similarity for there to be a case. As mentioned in the lecture, what gave this case gravitas was the David and Goliath narrative the media loves to run. In that case, people always want to see the "underdog" win. With that in mind, it would've ultimately been a PR disaster for the Olympic committee to pursue this case with the drive to win.
Formula 1 and 3M
Formula 1 (or F1 as it's more commonly known) faced a legal dispute with stationery manufacturers 3M. The copyright disagreement came around in 2018 after the F1 logo (designed by Wieden + Kennedy) bared similarity to the log of 3M's compression tights brand, Futuro. In 2018 that F1 launched a clothing line that carried the new logo simultaneously that Futuro began sponsoring tennis events. European Intellectual Property Office (EUIPO) records show that 3M registered a pan-European trademark to its logo in June 2017, giving it precedence as F1 didn't even apply for its new logo until November. In June 2018, Forbes revealed to the Telegraph that 3M lodged opposition to "all the goods and services" because "there exists a likelihood of confusion on the part of the public."
The above case is interesting as I wonder if both parties weren't selling clothing items, would this have gone as far as it did? With that in mind, it wouldn't be too far of a stretch of the imagination to see F1 selling clothes. In that, perhaps there would've been confusion caused that way round. You'd expect F1 to be selling clothes more so than 3M.
Tuesday Bassen About Her David Vs. Goliath Battle Against Zara
Another David and Goliath narrative touched upon in the lecture was between illustrator Tuesday Bassen and high street clothing retailer Zara. In 2016 independent designer Tuesday Bassen was notified by followers on social media sites that they saw her pin designs on clothing produced by Zara. After seeing it for herself at the local mall, she was convinced that it was her work that was being ripped off enough to hire a lawyer. Initially, Zara responded with no apology or effort to take the case seriously. Basses posted part of the letter on social media sites that showed Zara's lack of cooperation, which then caught the attention of others followers and fellow designers. Fellow designers such as Adam J. Kurtz that, on mentioning his own work being stolen, said, "The product in question was removed a few days later. I wasn't going to say anything publicly because this is very common, and though it was clearly my art stolen, the reproduction was so ugly and, you know, I'm a busy person."
The pair got together to fight the case and noticed that Zara had been following specific hashtags on social media such as 'pin', 'badge' to find designs.
This is an interesting case. As mentioned in the lecture, things get copied as there's a demand for it, but is that right? It was also noted that designers/artists shouldn't be surprised if their work gets copied after sharing it on social media. You're putting your work out there for the world to see, but also to take; that's why it's essential to take the necessary steps to stand you in good stead for if/when work does get stolen before posting online.
Guidebook to Intellectual property
What protection should be considered when protecting a new product against imitation.
Copyright/Unregistered design right
A patent is granted to protect an article that is essentially better in some way than what went before, or for a better way of making it.
Copyright is principally designed to protect literary, artistic, and musical works and other products of what may loosely be called the entertainment industry - films, sound recordings, broadcasts, and the like. Copyright gives a right to prevent copying. It does not provide complete monopoly in the sense that a patent does.
Designs, Registered and Unregistered
Design rights are basically about rights over the shapes or decoration of articles.
Unregistered Design Right
Unregistered design right is a useful short-term means of protection for designs for industrial articles. Like copyright, it arises without the need for any special registration or application. Although there are no official fees, a sensible designer will incur the internal costs of keeping records of all stages of the design process. Like copyright, unregistered design right does not give complete monopoly, it only prevents copying, so if others come up with the same design independently, they cannot be stopped.
Registration of Designs
The registration of a design involves some expense and must be done before the design is shown to anyone; otherwise than in strictest confidence. In particular, the sort of design that someone else would come up with reasonably soon may call for registration.
For the workshop challenge, I decided to look into the legal dispute involving one caterpillar cake between two rivals, M&S and Aldi, a legal dispute that I'm sure will go down in history. Before looking into this case, I didn't know much about the iconic caterpillar cake. However, a Taiwanese friend remarked a short while ago that she had read an article stating the caterpillar cake was a strong part of English culture, heritage and identity, or something along those lines. A short while later, that cake was making headlines.
In an online article with British Baker, Ben Evans, the legal director and chartered trademark attorney at Blake Morgan, stated that M&S has a trademark registered for the phrase "Colin the Caterpillar" and further trademarks to cover Colin's packaging and even his own basic shape. The crux of M&S' case relies on the assertion that similarities between Colin and Cuthbert confused customers, which led to customers buying a Cuthbert, either in the belief they were getting a Colin or they were purchasing a product of comparable quality. In addition, M&S alleged that by 'riding on Colin's coattails' and utilising his already well-established brand as the market leader for caterpillar cakes, Aldi gained an unfair commercial advantage.
I understand the trademarks on packaging, name and shape; however, I feel the argument on the similarities between Colin and Cuthbert leading to consumer confusion is slightly weak. M&S and Aldi are on two separate ends of the same scale; you either shop at one or the other. The fact that M&S and Aldi are different sides of the same coin could be M&S' downfall in this dispute. This story has been none other than a PR goldmine for Aldi. Cuthberts return to stores on 17 May was marked with a charity skydive and went down a storm among consumers. His social media notoriety is still sky-high following a series of memes on the Aldi Twitter account. Aldi has taken the whole situation in good humour and have created some hilarious advertising campaigns on the back of it. However, it has been a PR disaster for M&S as they've come off ill-humoured and cold. It's another David and Goliath narrative, and the personalities of these two supermarket chains have shone through, for better or worse. M&S have come across as snobby and money orientated, whereas Aldi comes across as more calm, collected and warm. Even if M&S win this case, Aldi has won overall with a much better outcome.
The legal world of design is something I hadn't massively considered before this week. However, it has been exciting hearing the different case studies and learning how this is so much more to consider when designing and hot to put the right strategies in place so if a legal issue does occur at some point down the road; you're prepared. The worrying part of it all (to me) was how social media is essentially being used to steal ideas from other people. However, I'm not surprised by this, but it has made me aware that it happens and should be considered before posting. It was also interesting to hear how much public opinion plays a part in any case that goes to court. In regards to my workshop challenge, I do believe that M&S had put a lot of groundwork in, in protecting Collin the Caterpillar; however, their public perception has been damaged in making it a legal battle which makes me question if it was worth it? There seems to be a lot of these cases, which are David and Goliath, and David always wins
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2021-06-07T09:49:00+01:00 (n.d.). Colin vs Cuthbert: a legal view on the caterpillar rivalry. [online] British Baker. Available at: https://bakeryinfo.co.uk/branding/marketing/colin-vs-cuthbert-a-legal-view-on-the-caterpillar-rivalry/656782.article [Accessed 22 Jun. 2021].