What is an original design?

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I know a few WP members work in graphic design/art. I have a question.

When you create something original (art or design) how do you check somebody else hasn't used it?

Case in point, South Australia football team Port Adelaide have designed new jumpers for their players



But now an aboriginal artist Elle Campbell says the team have stolen her artwork

Here's Elle and her art


So i) how do you protect your own designs? and ii) how do you know when you create a new design somebody else hasn't already used it?

when one uses traditional motif or symbols, it is an adaptation, the original art would be that of the person who used it the first time. The color and patterns displayed in the 2 photos are not exactly the same. Especially if those colors and patterns are traditional folk patterns, then the two works of art, one on the shirt, and one in the photo with the woman are actually different. If the pattern on the shirts was copied and used directly from her canvas and looked exactly the same, then she might have legal complaint. Copyright and patent laws can vary from place to place. This gets into all sorts of legal technicalities. It is why we see cheap knockoffs that look similar but not exactly like popular figures from cartoons, sports, etc. ( example, like batman, but not exactly like him, like snoopy the dog but not exactly like him) Logos are a whole "thing" by itself. and cultural art is always contentious when things are styled like traditional things but not by a person of "that culture". There are politics in everything where more than 1 human is involved.

That is not her origional design. People in the 1960's and 1970's here in the UK were doing that as it was well known for wallpapers and things like that. She can't claim it was her design as she also has copied the same types and designs from others even if it is a flash memory in her mind. The only bit she can claim could be unique is combining the kangaroos and the arrow design to the patterns of circles which I have not personally seen before.

"There's nothing new under the sun".

Everyone copies each other and adds to it. It is how we learn.

Origional design.... Does it exist? My grandad was a designer and designed some firsts which we use today... He designed the very first food processing machine in the world which started off with a raw food product which was in its just picked state, and ended up in jars ready for sale. Another company tried to steal his design and in court during a break, my Grandads boss or my Grandad was in a toilet cubicle and had a dictaphone with them as it was allowed in the courts in those days, and he happened to hear a conversation and recorded it where the opponents of the other comany (A big company) were talking about if they get away with this they would make millions... They did not know they were being recorded. The court then proceeded and the tape was played, and the company involved very hastily backed down and paid compensation so their company name was not to be heard in public.

The machine still existed a few years ago and was entirely made from stainless steel, and they had it standing outside so it was no longer in use... But this was some 40 to 50 years on!

But origional design... A tricky one because someone somewhere usually has invented even part of what has later been added to and improved.... We all learn from each nother and adapt or improve...

Ok, so it's possible Elle herself might have borrowed the artwork from something she saw (perhaps without realising). So the onus is on the football team to demonstrate she isn't the original progenitor of the art (and I agree with Mountain Goat that the design looks suspiciously like Indian motifs that might also have been used as wallpaper back in the psychedelic 1960s). That's what I immediately thought

I will say though, that the way the black band goes through it does look like they directly copied it and omitted the kangaroos to avoid making a direct copy of it.

I have to admit though that the design looks silly on those shirts... Makes the men look girly. I would use a different design anyway for those shirts, but that's me.

Actually I have avoided certain things in the past due to their design. Like on a game I play where one can join a club where I have avoided certain clubs because their logos are distinctly demonic or nasty. I have also refused to wear tee shirts with certain logos on them, preferring only to wear either plain tee shirts or ones with patterns or designs that I don't mind. I never have liked to wear designer tee shirts. Also, I don't like tee shirts that advertize all over them. I am ok with uniforms though. If they are plain and just have the company colour, and casually a little company name or logo subtly done. Railway uniforms are like that. They are good.
But not those tops they are wearing as they are just awful. Could not they get anything better? They look like a Ginsters pasty! (Those in the USA may need to look this up to see what I mean. It is a brand of food product).

The thought crossed my mind that between the time Ella produced the artwork and the point where the football club used the design, there may have been a third party involved. I'm 100% sure Ella would have displayed her artwork in a gallery to promote her art and perhaps within 1-2 years somebody might of downloaded the image of her artwork from a website and sold it to an image site where it became part of a collection of stock photos that could be purchased. My understanding is that stock images are not subject copyright once you buy them.

I'm almost 100% sure that a commercial football team wouldn't intentionally steal an image that would come back to hurt their brand.

It's practically impossible to buy clothes or shoes today without brand logos. But I'm the same, where possible I avoid labels/logos that advertise brands, but I have items with Nike logos because I like the material and its comfortable to wear.

If you are talking about copyright, then that is simple defined as using something unaltered. If they took her image and used it, that would be a violation.

As far as creating an original design, the artist of the painting could use traditional forms, but has done so in a new way. That could simply be the colors used or the arrangement of shapes.

Here is a case against the Andy Warhol foundation about copyright infringement:

https://news.artnet.com/art-world/andy- ... it-1955399

But it is complex, Richard Prince is infamous for stealing others work and getting away with it.

It depends on the copyright terms of the stock image. If it is copyright-free, then yes. But other images can have strict terms were you can only use the image for certain applications, in a limit region, with limited time.

Ignorance is not a defense against the law especially if the people doing this, the management and the people they hire, understand IP and copyright. I am sure the football organization controls their own images. They should know better than taking a random image and using it. Now whether they got duped, that is another matter. But then they can sue their source. Still, why are they taking free work? They should be putting in a bit more effort of hiring real designers.

How does coyright law work? For example if you design and sell a painting then what's to stop another artist copying your artwork? Do you have register a patent every time you design something in the public eye?

Most countries work off the Berne Convention, where the creator of a work gets automatic copyright to that work (there is work-for-hire were employees of an organization cannot claim copyright, but that is not happening here). If a child scribbles on a piece of paper, they get automatic copyright. Australia is a signatory to the Convention. The US is similar, but requires registration if you want to sue for statutory damages, but that is an outlier in most nations. I don't know if Australia has a similar registration requirement (I don't think so), but in the US you still have protection and ownership to the image (you can sue for lost revenue, for example).

Copyright is not a patent. Patents are for ideas. Copyright is like it sounds: it is the right to copy something, whether that is copying the text of a novel in a printed book or an image for a shirt. So a copyright gives the author/artist control over who can use the work so they can profit by that labor.

Naturally, people can copy anything. China does that all the time. Pursuing a suit is expensive. It is not a perfect law or right. Most legitimate organizations want to adhere to it as it creates a really bad reputation if you don't. But the law also describes fair use, where there are conditions were a work can be copied without permission--educational or journalistic applications (a work has a historical significance and used for description (not putting a design on a school logo)). There is also derivative works, where the work has been changed enough were it is considered new: Jane Austin's Pride and Prejudice vs. Bridget Jones' Diary. There is also parody. And copyright has a time limit. So you can republish Jane Austin's work (although you cannot simply duplicate the Penguin edition as they have copyright over their design).

Ok so hypothetically if I see a design created in 1960s wallpaper then can I give credit but still use it for commercial purposes?

I'm thinking industrial designs are not necessarily created by any one individual and secondly they must have an expiry date? especially if the original artist may have passed away.

If the copyright of the work has expired, you can use it. No need to give credit. If an artist creates a design based on that work, but is has been changed in a "significant" way, then the artist holds the copyright for that particular expression.

Companies can hold copyrights. Corporate copyrights can have longer terms. Disney is well known for pushing copyright terms out. Copyright is about the copyright holder. An employee can sign a work-for-hire agreement which means the copyright of their output belongs to the organization. If an artist is hired by a company, the copyright terms can also be negotiated between the company and artist. Commercial artists usually specify want media the work can be reproduce in, how many copies, and the scale of the distribution (nationally or internationally, for example), and whether the right revert to the artist or whether the artist can have other uses for the work when setting price and terms.

Ok thanks! sounds like being a designer and artist is fraught with a few minefields.