Designers, let’s face it, are very strange people. They’re experts.
They know the design laws and rules, and they can (and will) tell you the lineage of a design from the Middle Ages without the slightest provocation. They also work in one of the most vicious of all markets, where plagiarism and creative theft are rampant. Whether they design teapots or trains, the creative issues are all the same.
Creative design is a mix of sweat and inspiration. Having an idea is one thing, turning it into a product design is another. Taking someone else’s design is effectively robbing them of perhaps hundreds of hours of work. This is where ducking the issues, sadly, becomes expedient.
Designers usually have another basic environmental issue which adds to their problems:
Clueless clients who know nothing about the technical issues and less about the design situation. Even when it’s about their own products, they may not understand the significance or values of creative design.
So one teapot looks like another. So what? So everything. A registered design can force an unregistered design off the market. It doesn’t necessarily matter who designed it first, it’s who holds the registration, which is prima facie ownership of the design for statutory purposes.
That situation can be contested. Copyright law does come into play to a point, particularly when a product is in “tangible form” as defined by international copyright conventions. The problem is that copyright law, well-intentioned as it may be, is very hard and often expensive to enforce, particularly internationally, where most of the problems lie.
This unholy combination of circumstances means that the client has a further excuse to do precisely nothing. They know nothing about design, but everything about cost. If you’re a designer, however, it means that you can lose the value of your weeks or months of work on that basis.
Does that actually do any damage to designers?
Yes, and plenty. The portfolio value of the design is simultaneously lost and diluted. “I did this teapot design which was promptly plagiarized by every El Cheapo manufacturer on Earth” doesn’t do a lot for your ability to show you’ve designed unique products before. A new contract can’t recommend you get the design job on that basis, either.
Industries, meanwhile, tend to be happy to dodge the design issues, without realizing they’re also at risk. The irony of all this enthusiastic apathy is that in some cases they can be sued for design infringement. They can actually lose the right to manufacture and sell products.
A classic instance of design law was the case an Australian photographer who invented a split focus camera lens. The design was challenged by an American company, which interestingly had several million dollars worth of insurance for design legals. They used that money, and won the case, despite the fact the Australian design was created first. An expensive result, and proof that design law leaves a lot to be desired in terms of basic protection.
A fools paradise isn’t a healthy environment for designers.
Better laws, LegalZoom and greater industry awareness is needed.
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