Copy cats


There has been a general perception that copyright focusses on the arts. This is correct in that copyright protects literary works, musical works, artistic works, and dramatic works (and “other subject matter”).  However, copyright has well and truly extended beyond artistic endeavour to the industrial sphere with copyright as the lifeblood of software, gaming, technology and design industries.

Further, as the online world has developed an insatiable hunger for content, copyright disputes, particular in connection with social media such as Pinterest, Instagram, Facebook and in online markets such as eBay.

Original materials the subject of copyright include written works, images, photos, drawings, plans, designs, three-dimensional shapes and buildings, as well as sound recordings, films and television and sound broadcasts.

Australia and New Zealand do not have a copyright registration system.  Copyright automatically exists once the work is created.  However, it is critical that copyright housekeeping is in order to ensure that you actually own and can enforce copyright in the works that you think you own.  Tight commercial arrangements will assist in preventing leakage of copyright.

Copyright remains the property of the author of the work unless agreed otherwise.  Agreements should be put in place when commissioning the creation of literary or artistic works including brands, logos and packaging.  You might have paid for it but you may not own it.

Copyright / Design overlap

Australia has an unusual position on the Copyright / Design overlap when a two dimensional design is embodied in a three dimensional work.  If the creative work is industrialised or mass produced (in general terms, if 50 copies are made and sold), Copyright protection may be lost.  Design protection may be lost through public disclosure design (novelty).

There are also anomalies as to the duration of protection.  In broad terms, 10 years for an Australian design registration vs the author’s entire life + 70 years for copyright.  Unlike other forms of IP, with copyright, the author need not take formal steps such as registration in order to obtain Copyright protection.

Given that protection can be unwittingly lost and given that protection can be enhanced through other IP regimes, you need to consider your position at the outset.  We can help you with the mental gymnastics to understand the complex Copyright / Design overlap in Australia.

A wonderful thing about copyright is that it is divisible and IP generally can be assigned, licensed, commercialised in a multitude of ways.  Gestalt has extensive experience in copyright including ownership, assignments, employee issues, commercial agreements and enforcement.

Key services
  • Strategic advice on ownership of copyright
  • Strategic assessment of your copyright works and procedures for creating these and capturing ownership
  • Pre-launch clearance – reviewing advertising and marketing material, including product packaging, websites and advertisements
  • Copyright infringement proceedings including enforcement and defence
  • Commercialisation of copyright
Key contacts
Copyright in the Aboriginal Flag
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