PARTICIPATORY SPORT FOR CRAFT ARTISTS
Written by Bert Krages
For many people in the crafts industry, patent protection can provide a viable means of protecting the rights to designs and methods of making craft. In many respects, copyright registration is the ideal means of protecting your designs from being “knocked off.” Unfortunately, this is not available for many kinds of craft because copyright protection does not extend to functional features of crafts or the methods of making them. Thus if your crafts are primarily utilitarian objects, or if you want to protect a particular method of making an object, you will most likely have to obtain a patent to protect against copying.
Is your craft eligible?
Because crafts are largely rooted in utilitarian traditions, many common forms of craft are not eligible for copyright protection. Examples include clothing, vessels, handbags and furniture. Sometimes portions of a craft can be protected by copyright if the design of a work has pictorial, graphic or sculptural features that can exist independently of the utilitarian object. For example, the general shape and structure of a shirt would not be eligible for copyright protection because shirts are considered utilitarian objects. However, the pictorial design or the fabric pattern could be protected. Likewise, a teapot would generally not be protected by copyright although a glazed pattern or a highly sculptural element attached to the teapot might be. In many cases, the line between utilitarian and artistic is difficult to discern and depends on the degree to which the aesthetic choices are independent of the functional concerns. Thus, a traditional basket of a basic Nantucket or Shaker design would not be protected by copyright because their designs reflect the functional purpose of vessels, but a contemporary sculptural basket might be protected if it clearly served no other purpose than as a work of art.
Patents can often be used to protect designs not eligible for copyright protection. The key elements to patentability are that the invention must be novel and not obvious. Novelty means that no one else has come up with the invention before you did. Obviousness means that a person having ordinary skill in the relevant field would know how to solve the problem at which the invention is directed by using exactly the same method or device. In the United States, you have a one-year grace from the first offer of sale, publication or public use in which to file a patent application. If you wait longer than that, you have lost your eligibility to obtain a patent. However, in most countries you are barred against obtaining a patent if you sell or publicly use the invention before filing a patent application.
Continue reading this article on the Craft Report regarding Patent Types and How to Obtain a Patent, Patent Infringement and Co...
We have done a fair amount of work in patent application and it is by no means a transparent, obvious or simple process of applying, PARTICULARLY for craft or art objects. The best part of patent application is that it is going to cost you $3000 to $5000 just to apply to find out if the patent office thinks your item is patentable. Think of that as a $3-5K jury fee.
Of course, that's if you hire an IP lawyer like Mr. Krages , to shepherd your application through the process.
You can always go the DIY route with Legal Zoom or one of the other on-line application sites. This will only cost you several hundred dollars, but the money is well worth it for the experience of getting up close and personal with a government bureaucracy that rivals the IRS for minder-binder complexity and language commensurate with the most opaque artist's statement.