MDes Talks: Black or White? The Shades of Gray in Intellectual Property

Intellectual property is not a simple subject matter.

As a designer, in what ways can I keep others from using or copying my work? If I do not register or apply for intellectual property protection, do I still have rights to the creation? Can I draw inspiration from other people’s work in creating my designs? What am I allowed to do with other people’s design?

We had been answering these questions in our Intellectual Property class. According to our lecture, intellectual property or IP, for short, is everywhere. It covers inventions, artistic or literary works, labels, names and all creations that evolve from one’s creative mind in communicating an idea or solving a problem. It allows the inventors, authors or owners to enjoy certain exclusive moral and/or economic privileges. Moreover, there are two categories in IP, namely Industrial Property, which touches on design, patents and inventions, trademarks and trade secrets, and Copyright, which includes both literary and artistic works (see infographics below for a better picture of these areas of protection).

In the three weekends of IP immersion, we have not only discussed different forms of intellectual property protection and real-life cases of IP disputes, but we have also covered special topics dealing with agreements, online content ownership and licensing, with guest speakers sharing practical insights from their respective fields.

From these series of lectures, I have come to the conclusion that IP is NOT a simple subject matter. In fact, it is a complicated, puzzling discipline which deserves much introspection.

Yours or Mine

MDes Talks: Black or White? The Shades of Gray in Intellectual Property

Unlike in ordinary questions of property, which can be answered with “Yours” or “Mine,” there is no apparent nor easy answer in most IP cases. There are many factors one must consider in seeking solutions - the integrity of and attribution to the artist, and the underlying meanings when communicating and giving consent, for instance. Issues are not as straightforward as they seem to be, for many times, there are overlapping ownership rights and interests in IP. What is seemingly yours could be partly mine, and even partly theirs too. An illustration would be the monkey who took a selfie using a photographer’s camera. Who was now entitled to the profits from the sale of its photos - the monkey, the photographer, the company that sold it, or the public? (If you’d like to know the answer to this interesting question, you may want to check out this link.

Inspiration or Imitation

MDes Talks: Black or White? The Shades of Gray in Intellectual Property

There is no such thing as a completely original design. When we generate ideas, we always take inspiration, in one way or another, from the others that came before ours. There is always something to be built on, for us to create something supposedly new. This is what inspirational boards and internal comprehensive layouts are made of. We either pattern our design after another’s, or take bits and pieces from many of them to develop a new design, which in turn, will be a source of inspiration for future artists. Yet, to what extent can we take inspiration from these works, while still respecting the creator’s IP? Does following current trends exempt us from being charged with copying existing artworks? When are we only inspired by a design, and when are we stealing a design?

The line that separates imitation from inspiration is unfortunately, a blurry one, despite efforts by scholars and rulemakers to place guidelines to differentiate the two. Meanwhile as artists, we are reminded to take caution in drawing inspirations from other people. Even the smallest detail once copied, can give rise to dire consequences. And when IP is at stake, it becomes better to be safe and acknowledge, than be sorry and responsible later.

Expression or Imagination

MDes Talks: Black or White? The Shades of Gray in Intellectual Property

Another area of confusion in IP is the issue between expression and imagination. A mark is usually more distinctive, and thus enjoys greater protection, when it can create a unique identity in the consumers’ imagination. A brand may not entirely copy another, but may choose to ride on its competitor’s popularity and reputation by creating the same public perception, causing the likelihood of undeliberate confusion among consumers. What then, determines if the protection has gone beyond the expression to include the implications of a work? Which ideas formed in the consumer’s imagination is under protection? Can Disneyland® claim exclusivity over fairytales and magic? Can Nike®, after saying JUST DO IT.® prevent rivals from saying something to that effect in their advertisements?

MDes Talks: Black or White? The Shades of Gray in Intellectual Property

While we may not have the answers to these questions, I believe that the challenge as designers, is to fervently open our critical minds, to comprehend beyond areas of black and white, and examine the different shades in between. It is only in our perplexity that we will begin to find clarity, fully appreciating IP as an issue relevant to designers.

Infographics & Photo Credit: Margaux Tan

Posted by Margaux Tan – Margaux Tan started her design career as an art director in one of the leading advertising agencies in the Philippines, creating campaigns and solutions that would benefit the brands and the consumers. She is currently in her first year, taking up Master of Design (Design Strategies), in the hopes of improving her creative and critical expertise.
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MDes Talks is a series of Student Blogs contributed by students in different specialisms under the Master of Design Scheme. It is set out to share students’ first-hand experience in the d-school pedagogy, their projects, takeaways, and student life in general.
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