RESEARCH & ANALYSIS
Copyright process, pitfalls, ethical and legal issues affecting graphic designers.
Sketchbooks Research & Analysis Ideas for Week 3.
Copyright - the exclusive legal right of intellectual property, given to a creative and their creation for some time.
Trademark - a symbol, word, or words legally registered by a company or product.
Patents - licencing the sole right to exclude others from making or using a design, concept or invention for a set period from a governing authority (Oxford Dictionary | Find definitions, translations, and grammar explanations at Oxford Dictionary, n.d.).
Registered Design - a creation registered with a legal body before it is shown to anyone, preventing copying it.
Unregistered Design - a short term means of protection whereby designers keep records of all stages of a design process to prove origination, which prevents copying.
Plagiarism - representing another's thoughts, ideas, or concepts as one's original work (Jacob, Alexander, 2003).
A distinguishable feature, be it a logo, slogan or symbol created by a designer, is indispensable to a brand in the quest to attract and retain consumers, from the Nike swoosh to the golden 'M' of McDonald's. Registering and protecting the trademark or copyright from violation enables a business to carve a niche in the market, hoping that consumers will associate a particular mark with a specific brand and its reputation. Infringement and misuse of a brand identity confuse and mislead consumers, thereby diminishing the value of the brand's reputation. For this reason, process, due diligence and legal understanding of copyright and the legal process can ensure the protection of all parties involved (Journal for Juridical Science, 2007).
Fig. 1: Nike Logo, n.d.
Key steps to ensure protection against legal ramifications that could arise from copyright infringement are:
Contractual Agreements
A contract between a designer and client should be signed before any work commences. Getting legal assistance to set this up properly is money well spent. The contract should outline the rights and responsibilities of all parties involved (Dudson, Poulter and Mayner, 2021), included and not limited to:
Copyright and trademark registration
- I advise my clients to use their legal council to register and check all creative work and trademarks.
- Ownership and rights of creative concepts, artwork, and open files.
o Logos, icons, names and taglines or anything that forms part of the brand guide is wholly owned by the client.
o Copyright should remain with the designer until the creative work is paid in full.
o Conceptual work should be executed by the creative responsible for that work unless otherwise agreed upon.
o Conceptual work that is taken for execution in-house would require command a higher fee.
o Open artwork files are the property of the designer unless a buy-out rate is negotiated.
- Confidentiality.
o Clients generally require designers to sign a confidentiality clause.
o Illustrators, photographers, freelancers and other suppliers should sign a confidentiality clause to protect the employer.
- Payment Terms
o Payment terms for when clients pay should be 30 days from the statement to avoid a cash flow problem and ensure VAT is paid.
o New clients should pay a 50% deposit upfront before work commences.
o Penalty fees and interest owing for late payments must be documented.
o Who is responsible for costs incurred from incorrect artwork sent to print or artwork signed off on press.
Insurance
In a worst-case scenario, as a freelancer or agency, you need to ensure you have legal and financial protection in the form of:
- Professional Indemnity Insurance
- Public liability insurance
- Employer's liability insurance (Farrington, 2021)
Signoff of Creative Work
Mistakes cost money. A designer or agency can protect themselves from financial liability by getting the client to signing off work:
- Design & Concept Phase
o Allows you to bill for the work done to date.
- Finished Art/ Print Set-Up
o Incorrect work that goes to print incurs substantial costs to reproduce plates; make sure the client has signed off any work to ensure that you are not financially liable for those costs.
- On Press
o Both the designer and client should sign work off on press. Should a mistake occur, both parties can split the cost only if the designer has placed the print run and profited from it. If the client has set the print, then they should be responsible for all expenses incurred.
o I would suggest the client take responsibility for supplying and signing off all barcodes.
o The printer is responsible for checking and scanning the barcodes from their printers proofs.
The risk to designers is made more difficult in a global market where access to inspiration and information is readily at hand; it becomes difficult to originate a unique idea or concept. There is no such thing as an original idea – Picasso. Financial and reputation damage to a designer, client and brand occurs when copyright conflicts arise. The global reach of social media, public opinion and a 'call-out culture' exasperate the issue (Dudson, Poulter and Mayner, 2021).
In a classic David versus Goliath battle, a South African Company, Frankie's Soft Drinks, won a court case against Woolworths when the luxury retailer was ordered to withdraw their 'Good Old Fashioned' brand, finding it to have been copied from Frankie's. The battle was initially waged on social media, with sentiment against Woolworths, to the extent that Woolworths withdrew its vintage soda range to mitigate reputational damage (Ulmenstein, 2012). This is similar to the battle fought by Tuesday Basset against retail giant Zara (Puglise, 2016).
Fig. 2: Clover to acquire Frankie’s Olde Soft Drinks, 2015.
Fig 3: Advertising Slogans – Woolworths v Frankies, 2012
Motives behind copyright conflicts range from protecting brand identity and reputation to gaining financial rewards and publicity. Most disputes are settled out of court to avoid lengthy, costly legal battles and lousy press (Dudson, Poulter and Mayner, 2021).
In 2019, the Johannesburg high court ruled that Connie shower gel's packaging consisted of several features similar to the Nivea brand, which would likely confuse the market (Mabuza, 2021). With both products sitting in the same category and the designs being strikingly similar, even public opinion was on the side of Nivea.
Fig 4: Beauty giant 'bullies' Connie Ferguson, 2018.
Agreements can sometimes be reached between brands where the trademarks under dispute exist in different categories. Take-a-lot.com, a South African online shopping platform similar to Amazon, entered into a trademark dispute with a gluten-free food manufacturer Bake-a-lot.com. There should have been no customer confusion because the brands exist in different categories, but the threat of financial and legal action was enough to force the smaller company Bake-a-lot.com to change its name.
Freelancers and agencies should view copyright as an ethical security measure easily managed through education, early identification, research and keeping good record-keeping (Bond, 2017). Copyright, the unsung hero of intellectual property – Nola R. Bond
IMAGINE
Imagine and communicate the key areas that may infringe the copyright or require IP protection about a chosen designed object.
It has been a long-standing practice to poke fun at cultural icons, symbols, public figures and celebrities. A parody is a method of criticism whereby one imitates another's creative work for humorous or satirical effect. This inherently creates a conflict between the creator of the parody and the brand whose work is being parodied.
In South Africa, parody and copyright infringement were highlighted in a highly publicised four-year court battle between the Laugh It Off T-shirt company and South African Breweries (SAB). The Laugh It Off company, started by a journalist student at Rhodes University controversially sought to make people question how they look at brands today while having a good chuckle (Justin Nurse: Laugh it Off, n.d.).
Fig. 5: Black Labour Men's T-shirt, n.d.
Fig. 6: Carling trumpet PSL sponsorship, n.d.
Fig 7: Carling Black Label 750ml BOTTLE, n.d.
Laugh It Off marketed a T-shirt bearing an illustration of the CARLING BLACK LABEL beer but replaced the words 'Black Label' with 'Black Labour' and 'Carling Beer' with 'White Guilt'. In addition, the phrase 'America's Lusty Lively Beer' was replaced with 'Africa's Lusty, Lively Exploitation since 1652' and the words 'Brewed in South Africa' with 'No regard given worldwide' (Laugh it Off wins SAB fight | Fin24, 2021). It used the SAB brand to draw attention to racism and a history of subjugation and segregation in South Africa.
SAB brought proceedings against Laugh It Off alleging infringement of its trademark. This is understandable in a politically and racially charged South African climate, where SAB could suffer financial loss and reputational damage. Laugh It Off argued that it was merely passing social commentary on the mark through parodying it and exercising their constitutional right to freedom of speech (Laugh it Off wins SAB fight | Fin24, 2005). Laugh It Off won the case and got the last laugh.
There was a case for both parties in this matter and it makes a designer aware of a balance that must be reached between the law protecting intellectual property and a constitutional right to freedom of expression (Trademark Dilution: Laugh it Off!, n.d.). Ethically, designers should not profit from causing a brand harm and yet they should act boldly and create things that provoke thought, challenge societal conventions and turn some heads.
"More reward at the end of the day will come from making people stop to think and start to talk".
REFLECTION
Designers have an ethical obligation to create work that is not too close to another.
Creating something original and not derivative as there is a fine line between imitation and inspiration.
Reference: Jacob, R., Alexander, D., Lane, L. (2003) A Guidebook to Intellectual property: patents, trademarks, copyright and designs. London: Sweet and Maxwell.Reference: Oxfordlearnersdictionaries.com. n.d. Oxford Learner's Dictionaries | Find definitions, translations, and grammar explanations at Oxford Learner's Dictionaries. [online] Available at: <https://www.oxfordlearnersdictionaries.com> [Accessed 20 June 2021].
Reference: Scholar.ufs.ac.za. 2007. [online] Available at: <http://scholar.ufs.ac.za:8080/bitstream/handle/11660/1009/juridic_v32_n2_a2.pdf?sequence=1&isAllowed=y> [Accessed 20 June 2021].
Reference: Ulmenstein, C., 2012. Woolworths loses 'vintage soda' battle against Frankie's, withdraws range!. [online] Whale Tales Blog | Blog about Restaurants and Tourism in Cape Town and the Western Cape. Available at: <http://www.chrisvonulmenstein.com/blog/cape-town/woolworths-loses-vintage-soda-battle-against-frankies-withdraws-range/> [Accessed 20 June 2021].
Reference: Â bond, N., 2017. Copyright: The Unsung Hero - Intellectual Property - South Africa. [online] Mondaq.com. Available at: <https://www.mondaq.com/southafrica/copyright/582926/copyright-the-unsung-hero> [Accessed 20 June 2021].
Reference: Mabuza, E., 2021. Connie Ferguson's company fails in a fight with Nivea over men's shower gel packaging. [online] TimesLIVE. Available at: <https://www.timeslive.co.za/news/south-africa/2021-03-19-connie-fergusons-company-fails-in-fight-with-nivea-over-mens-shower-gel-packaging/> [Accessed 20 June 2021].
Reference: International Law Office. n.d. Trademark Dilution: Laugh it Off!. [online] Available at: <https://www.internationallawoffice.com/Newsletters/Intellectual-Property/South-Africa/Webber-Wentzel-Bowens/Trademark-Dilution-Laugh-it-Off> [Accessed 20 June 2021].
Reference: Fin24. 2005. Laugh it Off wins SAB fight | Fin24. [online] Available at: <https://www.news24.com/fin24/laugh-it-off-wins-sab-fight-20050527> [Accessed 20 June 2021].
Reference: Fin24. 2021. Laugh it Off wins SAB fight | Fin24. [online] Available at: <https://www.news24.com/fin24/laugh-it-off-wins-sab-fight-20050527> [Accessed 20 June 2021].
Reference: Citizens. n.d. Justin Nurse: Laugh it Off. [online] Available at: <https://citizenise.wordpress.com/2013/05/13/justin-nurse-laugh-it-off/> [Accessed 20 June 2021].
Reference: Dudson, A., Poulter, K. and Mayner, J., 2021. Week 3: Lecture Podcast.
Reference: Farrington, P., 2021. Copyright Overview and Principles.
Reference: Puglise, N., 2016. Fashion brand Zara accused of copying LA artist's designs. [online] the Guardian. Available at: <https://www.theguardian.com/fashion/2016/jul/21/zara-accused-copying-artist-designs-fashion> [Accessed 21 June 2021].
Image 1: n.d. Nike Logo. [image] Available at: <https://time.com/3917084/nba-nike-uniform-apparel-deal/> [Accessed 21 June 2021].
Image 2: 2015. Clover to acquire Frankie’s Olde Soft Drinks. [image] Available at: <https://www.google.com/search?q=frankies+soft+drinks&client=safari&rls=en&sxsrf=ALeKk01wNcBwjRB4W5ejUNUooyZlLkFmww:1624266565580&source=lnms&tbm=isch&sa=X&ved=2ahUKEwjbn6W9sKjxAhVMi1wKHUlpDakQ_AUoAXoECAEQAw&biw=1584&bih=1228&dpr=2#imgrc=_4nJaBbGq0SKYM> [Accessed 21 June 2021].Â
Image 3: 2012. Advertising Slogans – Woolworths v Frankies. [image] Available at: <https://blogs.sun.ac.za/iplaw/2012/03/29/advertising-slogans-woolworths-v-frankies/> [Accessed 21 June 2021].
Image 4: 2018. Beauty giant 'bullies' Connie Ferguson. [image] Available at: <https://www.sowetanlive.co.za/sundayworld/news/2018-02-18-beauty-giant-bullies-connie-ferguson/> [Accessed 21 June 2021].
Image 5: n.d. Black Labour Men's T-shirt. [image] Available at: <https://laugh-it-off-cape-town.myshopify.com/collections/iconic-satirical-t-shirts/products/black-labour-mens-t-shirt> [Accessed 21 June 2021].
Image 6: n.d. Carling trumpet PSL sponsorship. [image] Available at: <https://www.kickoff.com/news/articles/south-africa-news/categories/news/premiership/psl-sponsors-carling-black-label-launch-/592130> [Accessed 21 June 2021].
Image 7: n.d. Carling Black Label 750ml BOTTLE. [image] Available at: <https://www.biltongplus.co.nz/product/023c72a6-e933-11eb-e2fd-2887e0146ec5/> [Accessed 21 June 2021].