US Introduces New Copyright Exemptions
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Q&As for professional craftworkers
April 2009
This information is for general guidance only; it is not legal advice.
First read:
- copyright basics webpage
- Craftworkers information sheet
| questions | answer | more |
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|---|---|---|---|
| Can I prevent another professional crafter using the same styles or techniques? |
Copyright law does not protect styles or techniques. However, if another crafter’s use of your distinctive style means that people confuse that person’s work with yours, you may be able to take legal action under the law of “passing off”, consumer protection legislation or trade practices legislation. If you are concerned that you may have grounds to take action under these other areas of law, you should consider getting advice from a lawyer with expertise in these areas of law before making accusations that can’t be substantiated. |
QA0602 |
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| Who owns copyright in a work that was made by a group as a community project? |
This situation often arises in relation to group projects such as the creation of mosaics, tapestries and sculptures. If there was a single designer for the project, and the other participants were directed entirely by him or her, the designer will be the first owner of copyright in the underlying design (subject to any agreement to the contrary). If one person created a design or drawing on which the work was based, but took no further part in it, that person will own copyright in the original drawing but also has rights in the work, to the extent that the work reproduces the original drawing. However, where that design is then realised as a result of the skills of the other participants, for example the mosaicists, tapestry makers, carvers or metalworkers, the copyright in the finished item is likely to be owned by the relevant craftspeople (subject to the designer’s underlying rights). If several people were involved in designing the work, the position may be more complex. If the work was created as a fully collaborative work, it is possible that all the collaborators are joint owners of the copyright; or that each of them owns copyright in the part for which they were responsible. |
Who owns copyright | QA0103 |
| Someone is producing identical copies of a craftwork I have designed and selling them at the markets. Can I stop them? |
If the copies reproduce a substantial part of the original (for example, not simply using the idea or technique, but reproducing size, shape or distinctive elements) it is likely that copyright has been infringed. |
Infringement | QA0104 |
| Someone is claiming that something I have made infringes their copyright, but I have not seen their work. Can I have infringed their copyright without seeing it? |
On occasion, people do independently produce very similar works without either person being aware of the other person’s work. If the similarity is no more than the use of a similar idea (for example, making the item in a particular shape), there is no question of copyright infringement. However, if the vases are so similar in appearance as to suggest that one of them is a copy of the other, or of important parts of the other, this may raise an inference that copying has occurred. If the similarity is purely a coincidence, copyright will not be infringed, even if the two works are very similar. The more original and complex the works involved, the more likely it is that the inference of copying will be made. |
QA0105 |
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| Can my employer continue to make items based on my prototype craftworks after I leave the job, without my consent? |
If the person creating the prototypes was an employee, and made them as part of his or her job, then copyright in them is owned by the employer (unless they made an agreement to the contrary). The creator would have no right to prevent the company from reproducing the works, although he or she would retain moral rights in respect of them. Moral rights are outlined above, and explained further in our information sheet Moral rights. If the prototypes were not made as part of the creator’s job but on the creator’s own initiative, then whether the company can continue to make craftworks based on them depends on the terms of the agreement – written or verbal – at the time the prototypes were made. If the company paid the creator to make the prototypes, it will have a licence to use them for the purposes understood at the time (but not for any further uses). If the creator simply offered the prototypes to the company, or gave permission for a limited number of reproductions, he or she may be able to revoke or terminate the licence. |
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| I sold jewellery I created to the owners of a shop, to be retailed under my name. They removed my tags and replaced them with their own. Have they infringed my rights? |
Assuming the pieces of jewellery are protected as “works of artistic craftsmanship”, their creator has moral rights in respect of them. Exhibition and sale of the works without attributing the creator infringes her right of attribution. If the tags imply that another person made the jewellery, there is also an infringement of the creator’s right not to have the works falsely attributed. The actions of the shop may also be in breach of trade practices law. |
QA0106 |