Copyright vs Design Patent Protection

Copyright protects any original work of authorship that has been fixed in a tangible medium of expression. Copyright consists of a bundle of exclusive rights that include the exclusive rights to reproduce, distribute, publicly display, and publicly perform the copyrighted work; as well as to make derivative works. The term of a copyright generally extends for the life of the author plus 70 years. If, however, the copyright is deemed to have been created by a business, the term of the copyright will be the shorter of 95 years from publication or 125 years from creation. A copyright registration is relatively inexpensive to procure. The filing fee charged by the U.S. Copyright Office will typically be either $45 or $55 per work. If expedited processing is required, the Copyright Office may grant expedited processing for an additional charge of $800. The permissible reasons for granting a request for expedited processing include pending or prospective litigation; for customs-related issues; and in order to meet contractual or publishing deadlines. Assuming one does not pursue expedited processing, it typically takes between three to six months to receive an Office Action either granting the copyright registration or rejecting the application. The allowance rates for copyright applications are generally high. A work is automatically protected by copyright when it is created; however, copyright registration is required prior to filing a copyright infringement lawsuit. This is important because the value of copyright is dependent upon their being a chance that the copyright may be asserted in litigation (whether that threat is real or merely perceived). If a copyright infringer knows that a copyright owner will not assert their copyright in litigation, then there is no risk of liability to the infringer.

A design patent protects a new, original, and ornamental design for a useful article of manufacture. A design patent prohibits others from making, using, offering for sale, selling, and importing the patented design. Design patent applications must be filed within one year after the first offer for sale, public disclosure, or public use of the design. The U.S. Patent and Trademark Office fees will be $960, but will decrease to $480 if the applicant qualifies for Small Entity Status, and will be $240 if the applicant qualifies for Micro-entity Status. Should a professional illustrator be used to prepare the required graphical depictions of the design, such services will likely cost approximately $100/sheet (on average). A design patent typically takes approximately one year to procure. The allowance rates for U.S. design patent applications are very high.

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As reflected above, the costs associated with obtaining a copyright registration are significantly less than those associated with obtaining a design patent. Both types of applications benefit from high allowance rates. Neither form of protection is regarded as particularly strong as far as intellectual property protection goes. Copyright only protects expression and does extend in any manner to function. Similarly, design patents only cover ornamental design/appearance of an article of manufacture and do not extend in any manner to the utility of the article. Design patent protection is a stronger form of protection than copyright, however, because copyright protection only guards against actual copying by another. If another independently creates the same content as the copyright owner, this will not lead to liability. Independent creation is not a defense to a design patent infringement claim. Copyright protection lasts significantly longer than the term of a design patent, however.