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

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

Many artists draw upon nature for their artwork. Think of Robert Smithson's "Spiral Jetty" or Maya Lin's "Wave Field." Yet protecting such artwork from copying is legally tricky. Can intellectual property law protect such works from infringement by others? How can artists maximize their protections?

Nature and the Public Domain

As a general rule, no one can claim copyright over nature. The basis for this concept is that birds, bees, flowers, and the like are in the public domain. An artist cannot copyright the spotted pattern of a leopard, a taxidermist cannot copyright a stuffed leopard, and a Hollywood model maker cannot protect a synthetic head that replicates a leopard. Here are two 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

Here's how far one can take the idea that nature cannot be copyrighted.

Variations of natural occurrences. Unless an artist can demonstrate a variation on what occurs naturally, such as a corn candle in which individual kernels were artistically modified, he or she cannot 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. Some examples:

  • The makers of plush animals that combine fanciful and representational elements of animals have consistently been able to stop 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, on the grounds that the animal heads and tails contained imaginative artistic expressions and were not lifelike representations.

Design Patent Law May Strengthen IP Protection

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 copyrights, 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, consider a new design for a candle or a jewelry box. You must file your design patent application with the U.S. Patent and Trademark Office within a year of your first sale or public disclosure of the design. If you are unsure 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 PTO's 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. You must actually create a physical implementation of that idea in order to achieve legal protection.

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

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