Audio Transcription of Interview on Classic FM on 25 September 2006 ; Copyright, Designs and Trade Marks
Once again on Classic breakfast we are talking Intellectual Property, in actual fact we are talking trade marks and patents today. My guest in the studio, Herman Blignaut is an attorney with the firm Spoor & Fisher. Herman, good morning, welcome to Classic FM. The question that has been sent through by one of our listeners is:
"One of my interests is embroidery, and the Internet is teaming with sites advertising thousands of designs. Some are free and others aren’t. There are other designs too, pretty pictures or interesting abstract patterns which could translate into designs. American artisans are forever reminding each other that if they want to do an embroidered version of someone´s holiday photograph, e.g. of a tropical beach, they need to ask permission first. This applies for personal use as well.
This applies to pictures in magazines, greeting cards, calendars and book illustrations. I´ve got a vague impression that our law somehow determines that if a design is reproduced in a different medium then copyright exists on the new version, but I´m not sure if that cancels out one´s obligation to ask permission first, if that even exists in our system."
Herman Blignaut :
These laws all make provision for the possible protection of different designs, shapes and ornamentations. Copyright can vest in designs (including those depicted on pictures and photographs) as artistic works. In order to qualify for copyright protection such an artistic work must essentially be original (in that it has not been copied from another source and has been created through the author´s own efforts and skill) and be in a material form (meaning that it may not be a mere idea or concept). Copyright automatically subsists once these requirements are complied with. In order for a design to qualify for design and / or trade mark protection, such design must also comply with certain requirements as required by the respective Acts. A trade mark must be distinctive to qualify for registration. This entails that the specific shape and / or ornamentation must distinguish your design(s) from those of others and may not be common. To qualify for design registration, one of the requirements for such design is that it must be "new". The novelty requirement is an absolute one which entails that it must be new worldwide. Designs and trade marks (unlike copyright) can and should be registered in order to secure the corresponding rights. Probably the most important consideration for protecting Intellectual Property is to prohibit and be able to stop others from economically exploiting the fruits of your own endeavours. This monopoly is, however, limited in time and depends on the nature of the right. If you are, for example, desirous to copy a design which you have seen and intend to reproduce it merely to exercise your hobby for personal and household use, I suggest that you should not be too concerned with doing so. In the event, however, that you reproduce such designs with the intention of trading therewith (e.g. marketing, selling and offering for sale to others) for your own gain, the situation may be different and I would suggest that you give special consideration to each such design to consider whether any rights vest therein.
SPOOR & FISHER