Design Copyright Infringement and Laws

Design Copyright Infringement

From graphic and visual design, to industrial and product design, to fashion and more, design touches every facet of our lives today. Whichever design discipline you practice, if your designs have been used in ways you didn’t consent to, design copyright infringement was committed and you may be entitled to recover damages.

Some people may not realize they’re infringing your work when they share it on social media or embed it on a website. Other times, unethical people will intentionally steal your work and call it their own. In either case, both can cause harm by damaging your business, your wallet, and your reputation. That’s why it’s so important to officially copyright your work and make sure your rights are enforced.

Understanding design copyright law

Once you’ve created a design, you are the original author of that work. Whether the work is published or not, you immediately own the copyright.

According to the U.S. Copyright Act at 17 U.S.C. 106, when a design is copyrighted, the designer “owns” it and has exclusive rights to it. Those ownership rights include:

The ability to reproduce the design.
The ability to create derivative works based on the design.
The ability to publicly distribute copies of the design via sale, transfer of ownership, or even by rental, lease, or lending.
The ability to publicly display their design.

The main exception is if the work was created “for hire.” If a design was created as a by-product of freelance contract work or employment, then the resulting work is the property of the hiring party. But if you are the legitimate owner, it’s best to register your IP with the U.S. Copyright Office as soon as possible.

What if my designs were stolen before registering my copyright?

That’s ok! You still have options! If your design wasn’t registered with the U.S. Copyright Office before it was stolen it just means that you can only recover “actual damages” as opposed to “statutory damages.”

Actual damages are most often calculated using a designer’s normal license fees and/or standard licensing fees. Any profits gained from the infringement may be added to the actual damages as well. However, those numbers can be difficult to quantify, so it’s always best to copyright your work as soon as possible so you can pursue statutory damages instead.

Statutory Damages vs. Actual Damages

If a company uses your designs to create and sell merchandise for profit, then actual damages are quite simple to calculate. But oftentimes the actual damages are more complicated and harder to determine.

However, if your work was copyrighted before it was stolen, you can pursue the predefined range of financial damages under law 17 U.S. Code § 504(c). These are statutory damages and can be much simpler to pursue.

Amounts for statutory damages can range from $750 to $30,000. The final amount will be determined at court, but if the court deems it necessary, they can increase that number all the way up to $150,000. You can see why it really pays to protect your work BEFORE it gets stolen!