Legal and Ethical Issues in Design

LEGAL & ETHICAL OBLIGATIONSMONDAY 9th FEBRUARY 2015 /// DOUBLEDO NOWLegal obligationsA general term for any type oflegalduty or liability.E.g. Attribution, copyright, plagiarism etc.

Ethical obligationsEthical obligations are a set of ought to standards that define a moral course of action and draw a line between right and wrong.E.g. Cultural sensitivities, sustainability etc.KEY KNOWLEDGE & SKILLSSocial, ethical, financial and environmental factors influencing designers decisions Trademark and copyright legal obligations of designers when using the work of others

Explain how design decisions are influenced by a range of factors Identify practices that acknowledge legal obligations

NOTE TAKINGYou will need to take notes about the following:

CopyrightTrademarksPatents Registered Designs Creative Commons

LEGAL OBLIGATIONSA trade mark is used to distinguish the goods and services of one trader from those of another.5

Intellectual Property (IP)Intellectual Property (IP) is a term that describes the application of the mind to develop something new or original. IP can exist in various forms; a new invention, brand, design or artistic creation. There are various types of IP available. This includes copyright, trademarks, patents, registered Designs and creative Commonshttp://www.ipaustralia.gov.au/

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copyrightA trade mark is used to distinguish the goods and services of one trader from those of another.7Where have you seen a similar image to this photo?

Mannie Garcia for the Associated Press (2006), Shephard Fairey (unofficially)for the Obama Campaign (2008)

Famous street artist Shephard Fairey created the Hope poster during President Obamas first run for presidential election in 2008. The design rapidly became a symbol for Obamas campaign, technically independent of the campaign but with its approval.In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia with the AP demanding compensation for its use in Faireys work. Fairey responded with the defense of fair use, claiming his work didnt reduce the value of the original photograph.OutcomeThe artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.

What are the legal issues involved in this case?What are the legal issues involved in this case?CopyrightThe exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. It protects the designers economic rights.

Moral RightsThe right of an author or other creative artist to protect the integrity and ownership of their work. It protects both the designers reputation and the integrity of their work.

CopyrightCopyright is designed to protect the products created by writers, designers, artists, composers, film makers and other creative professionals.Copyright is automatically granted to a product once it is put into material form such as being drawn or written down.The owner of the copyright has the right to show, publish or perform the work in the public realm and can prevent others from reproducing the work without explicit permission.

http://www.copyright.org.au/find-an-answer/browse-by-a-z/ 13CopyrightCopyright does not protect techniques, concepts or ideas must be physical representationThe owner of copyright may be separate from the owner of a designed item eg. Designer, manufacturer, design studio rather than individual designerCopyright is maintained for approx. 70 years before it is within the public domain. Copyright protection is free and automatic in Australia and protects the original expression of ideas, and not the ideas themselves.

Copyright Case Study

Copyright Case Study

Copyright Case Study

Copyright infringement found by taking the look and feelElwood designed and produced the following t-shirt which it called the New Deal t-shirt. Cotton On subsequently produced the following t-shirts (among others) which it admitted was a copy of the shape and form of the graphic developed by Elwood.The Appeal Court unanimously held that the copyright work was comprised of the whole of the graphic including the spatial elements. Thus, the layout of the graphic elements was considered to be a matter of expression and not merely a matter of idea or concept. In the words of the Appeal Court, the layout selection, arrangement and style of the graphical elements of the Elwood design gave it a particular look and feel. By taking the layout and these other elements of expression, Cotton On took a substantial part of the Elwood design in which copyright subsisted.

TrademarksA trade mark is used to distinguish the goods and services of one trader from those of another.19

Nike swoosh20

Coca-Cola21TRADEMARK A trademark can be a letter, number, word, phrase, sounds, smell, slogan, logo, picture, aspect of packaging or any combination of these.Trademarks are used to distinguish goods and services of one trade from those of another.You dont have to register your trade mark to use it however registration is advisable because it can be an expensive and time consuming exercise to take action under common law.A registered trade mark gives you exclusive legal rights to use, license or sell it within your country (laws vary within countries) for the goods and services for which it is registered.MOST VALUABLE (2014)GoogleTrademark value: $44.3 billion

MicrosoftTrademark value: $42.8 billion

WalmartTrademark value: $36.2 billion

IBMTrademark value: $36.2 billionVodafoneTrademark value: $30.7 billion

Bank of AmericaTrademark value: $30.6 billion

GETrademark value: $30.5 billion

AppleTrademark value: $29.5 billionSOUNDS "D'Oh" spoken by Homer is owned by FOX Networks

Looney Toons Theme Song is owned by Time Warner

Nokia's default ringtone

Tetris electronic Russian folkstyle tune is owned by Elorg Company

COLOUR Can you identify the brand associated with this colour? Tiffany & Co.25

TIFFANY BLUETiffany & Co. has used the color extensively on promotional materials, including boxes and bags.The Tiffany Blue color is protected as a color trademark by Tiffany & Co. The color is produced as a private custom color by Pantone, with PMS number 1837, the number deriving from the year of Tiffany's foundation. As a trademarked color, it is not publicly available and is not printed in the Pantone Matching System swatch books.

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COLOUR Do you identify any products with this colour?27

CADBURYS SWEET VICTORYIn 2008, Cadbury filed a trademark in the UK over the shade of purple used on its products, (Pantone 2865c or Cadbury purple) a colour that it claims to have used since 1914. The dispute over the trademark application arose as Nestle, as a major competitor of Cadbury, uses a comparable shade of purple on its Quality Street products.Its been long established in Australian trade mark law that protection is available for things other than words and logos. Trade mark protection also covers sounds, names, shapes and fortunately for Cadbury it also extends to protect colours in limited circumstances.Cadbury applied to register the colour purple as a trade mark in Australia but, according to IP Australia they, were unable to register the general colour purple but were successful in registering a specific shade of purple as a trade mark on the packaging for block chocolate and boxed chocolate.

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COCA-COLA SUE TARGET?Dont confuse the term trademark with ownership of colour though. Trademarking a colour simply allows a company to use a particular combination and shade of colour in its own industry.Coca-Cola couldnt sue Target for using a similar red, because they are not selling competing products.

Color trademarks apply to unique situations because it's not possible to permit every business to own "their color" today. Otherwise there would be "color depletion." In other words, there are a limited number of colors. You can paint your house that color, for example, without having a problem. Given the wide range of products Tiffany sells, and the uniqueness of their shade of blue, they are protected from other jewelers who would use the same color for boxes or packaging. Otherwise, there would be brand confusion.

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www.logothief.comLOGO THEIF?Apfelkind (Apple Child) is a cafe in Bonn where parents can sip lattes while children play with toys or listen to storytellers. Its logo shows the outline of a child's face within a red apple with none of the characteristic bite marks of the electronics manufacturer's logo.Yet when Apfelkind's owner, Christin Rmer, filed a trademark application for her company in 2011, Apple got in touch asking her to withdraw the request since customers could potentially confuse the two logos. After two years of legal correspondence Apple withdrew its objection in October of 2013.

WebsiteLogo Thiefaims to showcase the plagiarism that happens in the logo design world. By naming and shaming the companies that copy the designs of others, it's alarming to see just how easy it is to simply plagiarise with the click of a button.

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The curated cases include a comparison between the copied and the original logo design, with the resemblance to the original design clearly shown. Some have undergone modifications but most of the logos are exactly copied from the original.34LEGAL & ETHICAL OBLIGATIONSTUESDAY 10th FEBRUARY 2015 /// SINGLEDO NOWSummaries the following terms:

Copyright =

Trademark =

Moral rights =

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DO NOWCOPYRIGHT = AUTOMATIC, FREE, protects the original expression of ideas and products, not the ideas themselves. Lasts 70 years after the death of the author. There is no system of registration for copyright protection in Australia. Once copyright expires, work go into the public domain. You can use work in any way or for any purpose, must attribute.

TRADEMARK = REGISTERED: protects defining features of a brand (e.g. letter, number, word, phrase, sound, smell etc.)

MORAL RIGHTS = AUTOMATIC, FREE, protects personal rights that connect authors to their work. Last as long as copyright. They include: the right of attribution, the right against false attribution and the right of integrity.

COPYRIGHT & TRADEMARK

THE LYNX EFFECT, AdvertSometimes both copyright & trademark protection. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement's text and graphics, as published in a particular vehicle, will be covered by copyright - but this will not protect the slogan as such. Copyright law does not protect a bare phrase, slogan, or trade name.The slogan may be protected by trademark law, but this will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration.Copyright vs trademark: http://www.lawmart.com/forms/difference.htm39

PATENTSA trade mark is used to distinguish the goods and services of one trader from those of another.40PATENTSA patent is a right that is granted for any device, substance, method or process that is new, inventive, and useful.A patent is legally enforceable and gives you (the owner), exclusive rights to commercially exploit the invention for the life of the patent. You can apply for patent protection for a range of inventions. These include traditional inventions such as appliances, mechanical devices and so on.In Australia and most other countries standard patents have a term of 20 years, provided periodic renewal fees are paid.QUICK FACTWhat cannot be patented?You cannot patent human beings or the biological process for their generation, artistic creations, mathematical models, plans, schemes or other purely mental processes.

iPOD & iPADIn February 2013, Apple received a patent for one of its portable media players, iPod Shuffle, that has been on the market since 2010. A few of these patents relate to the efficient use of device resources, both system processing power and display screen space.Apple hasroughly 15,500patents, about 8,500 of which are U.S. patents

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Registered designA trade mark is used to distinguish the goods and services of one trader from those of another.44REGISTERED DESIGN A registered design is a form of intellectual property that protects the way a product looks. A design can cover both two-dimensional and three-dimensional visual features including a products shape, structure, pattern and decoration. To be protected in Australia a registered design must be new. This means that it cant be identical to any existing design used in Australia or published anywhere in the world. It must also be distinctive, which means that it cant be substantially similar in overall impression to any existing design used in Australia or published anywhere in the world. Protection can last for up to 10 years. EXAMPLE The Coca Cola bottle, even without any text or branding was recently registered in Japan being the first of its kind.

Registered designs are all about appearance. The Breville Smart Grill, the new Qantas Q bag tag and check-in kiosk and the Dyson Air Multiplier fan are all designs that are registered in Australia.

Creative commons

A trade mark is used to distinguish the goods and services of one trader from those of another.48CREATIVE COMMONS (CC)Creative Commons is an international non-profit organisation.The CC licences provide a simple standardised way for individual creators, companies and institutions to share their work with others on flexible terms without infringing copyright. The licences allow users to reuse, remix and share the content legally.Offering your work under a Creative Commons licence does not mean giving up your copyright. It means permitting users to make use of your material in various ways, but only oncertain conditions.Thecore conditionfor CC licences is the requirement that the author of the work is attributed theAttributioncondition.

LICENSE CONDITIONS

LICENSE CONDITIONS

http://creativecommons.org/examples

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RECAP THE BASICS A trade mark is used to distinguish the goods and services of one trader from those of another.52REMEMBERYou must always have the permission of the original creator, designer or owner of the intellectual property before using it

Copyright = AUTOMATIC, protects the original expression of ideas and products, not the ideas themselves.

Trademark = REGISTERED: the defining features of a brand (e.g. letter, number, word, phrase, sound, smell, slogan etc.)

Patents = REGISTERED: how something works (must be new and innovative)

Registered Designs = REGISTERED: how something looks

Creative commons = REGISTERED: FREE, based on attribution, clear what user can and cannot do with the materialOTHEROBLIGATIONSLEGAL ISSUESLegal issues are set; they are issues that are defined by law and cannot be breached without serious consequences.

Building codesSafety requirements and regulationsHealth requirements and codesLabeling requirementsResearch: Photographic Media releases

55ETHICAL ISSUESEthical concerns are less concrete; the relate to situations where a person ought to both do and not to do something.

Working for clients conflicts of interestsAffect of design/media negative impactImpact on community ArchitectureMaterials and sources - fair trade etc.Locally produced materialsCommunity vision impaired, imagery where children can seeSustainability (sometimes a legal obligation, can change due to government or international law)Materials, packaging, energy use, waste, recyclingLong term impacts

LEGAL ISSUESCorporate social responsibilityCorporate social responsibility is the term used to describe the way that a business takes into account the financial, environmental and social impacts of decisions and actions it is involved in.COLE & PARKER /// www.coleandparker.co

http://coleandparker.co/Sale proceeds are loaned through our partner Kiva to fund entrepreneurs in the developing world. Once a loan is payed back we use those funds to fund another entrepreneur thus creating a revolving loan effect.HW: Find a designer that has a corporate social responsibility. Short paragraph. Describe business need, how they are upholding their corporate social responsibility. / Workbook.57BRATZ

Mattel VS MGA EntertainmentA federal appeals court on Thursday tossed out $172 million in damages thatMattelhad been ordered to pay MGA Entertainment, the maker of Bratz dolls. It was the latest move in a bitter nine-year legal dispute over commercial rights to the ethnically diverse, pouty-lipped toys.The case dates to 2004 when Mattel first filed a lawsuit asserting that the designer of the toys, Carter Bryant, was working for Mattel when he did the initial drawings and early work on the Bratz.A jury awarded Mattel $100 million in 2008 and found that Mr. Bryant had developed the Bratz concept while with Mattel. But the Ninth Circuit overturned that verdict and a new trial was ordered.In April 2011, a jury rejected Mattels claims and sided with MGA. Mattel was ordered to pay MGA a total of $309 million in damages and legal fees.

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