Protecting Artwork That Uses Natural Elements: Copyright & Design Patent Laws

Can you stop others from copying artwork or craftswork that borrows from nature?

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Many artists draw upon nature for their artwork. Yet protecting such artwork from copying is tricky. Here's the lowdown on when copyright law and design patent law can and cannot help.

Nature and the Public Domain

The basis for the rule that you can't claim rights to nature is that the birds, bees, flowers, and the like are in the public domain. An artist can't copyright the spotted pattern of a leopard, a taxidermist can't copyright a stuffed leopard, and a Hollywood model maker couldn't protect a synthetic head that replicates a leopards. Here are a few examples:

  • In 1987, Banana Republic was allowed to use animal heads in its retail stores that were similar but not identical to those of Peter Rachel, a maker of synthetic animal heads.
  • Vickery Design, a candle manufacturer, sells candles shaped like corn. In 1999, Vickery tried to stop another company from making corn-shaped candles. The judge ruled that that Vickery's candle was not copyrightable because it accurately reflected the way corn occurred in nature.

The Limits of Copyright Law

Variations of natural occurrences. Unless an artist can demonstrate a variation on what occurs naturally -- for example, a corn candle in which individual kernels were artistically modified -- you can't stop someone from copying nature under copyright laws. This, however, is not an issue for many artists who borrow from nature, since variations on nature occur inherently in the creative process.

The less the work replicates nature, the better. The less a work replicates nature, the easier it is to protect under copyright law. Some examples:

  • The makers of plush animals that combine fanciful and representational elements of animals have consistently stopped infringers.
  • In a 1993 case, the company Wildlife Express created and sold duffel bags that had heads and tails resembling bears, pandas, ducks, and elephants. The company sued to stop Carol Wright Sales from selling similar duffel bags. The court ruled for Wildlife because the animal heads and tails contained imaginative artistic expressions and were not lifelike representations.

Design Patent Law May Help

Some works based on nature might be protected under design patent law. In general, design patents are more expensive and time consuming to acquire than copyright protection, but they provide a broader scope of protection for art.

How to get a design patent. To acquire a design patent, your design must be a new ornamentation for a functional object -- for example, a new design for a candle or a jewelry box. You must file your design patent application with the USPTO within a year of your first sale or public disclosure of the design. If you're in doubt whether you qualify for a design patent, you can learn more about design patents at My Design Patent, at Nolo's Patent Law area, or by contacting an attorney specializing in intellectual property law.

Example of design patent upheld for replication of nature. Design patents have proven friendly to replications of nature. In one case, the court upheld the U. S. Patent and Trademark Office's (USPTO) decision to grant a design patent for a decorative bead shaped like a woman's breasts. The judge found that the patent owner was not not claiming rights to the human anatomy, but only for their anatomical design on the beads.

Limits of the Law: No Protection for Ideas

Copyright law and design patent law protect your designs and expressions, not your ideas. For example, if you created a fanciful bee pin, you could stop others from making copies of the pin, but you could never stop others from using the idea of a pin in the shape of a bee or the idea of a jewel-encrusted bee.

To learn more about design patents and how to get one, check out Nolo's Patent it Yourself, by David Pressman.

by: , Attorney

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