Design Infringement: What to Know and How to Avoid It
Let’s say you have a great idea for a client's project. How do you ensure that your design hasn’t been done before? That you’re not taking it from someone or something else unintentionally?
The idea of originality within the creative field can be controversial. After all, in this day and age, the question of “is anything original?” often arises. Think of all the reboots, remixes, and adaptations that are in Hollywood today. We are at a point where we keep remaking the Spiderman movies because it’s a “good” story and perhaps we are apprehensive of creating new superheros because we don’t want to infringe on classic, beloved comic book characters. We also don’t want to be at risk of plagiarizing, but, at the same time, we want to continue being innovative creatives.
Furthermore, you may find yourself in a position where a design or idea you come up with has already been done before without your knowledge of any specific creative infringement. A term for this is cryptomnesia, which is defined as such: “Cryptomnesia occurs when a forgotten memory returns without it being recognized as such by the subject, who believes it is something new and original.” This is a nerve-wracking concept! After all, if you are working from seemingly new ideas in your own head, how can you ensure that an idea you have hasn’t been taken from someone or something else that exists as a forgotten memory?
An example of this could be found through the PayPal/Pandora feud sited in our “How Crucial is a Company's Typeface to their Brand?” post. Last year, PayPal sued Pandora for their rebranded logo of a “P” that looked eerily similar to PayPal’s updated look. We can’t prove for sure that this was an instance of cryptomnesia on Pandora’s end, but it seems pretty darn close.
So, how does one avoid these roadblocks? How can you utilize classic designs or words or any creative medium as inspiration without falling on the risky plagiarism spectrum?
The first thing you can do to avoid manipulating too much of someone else’s creative work is to understand copyright laws. Copyright laws were first developed by Thomas Jefferson, which were then added to the Constitution: “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” For design work specifically, the current Copyright Law of the United States defines an “original” design as the result of “the designer’s creative endeavor that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source.”
As far as creating new design work, it’s best to avoid appropriating another’s design into your own. Obviously, there are exceptions to this. If you use a similar color scheme, for example, as another company’s logo or graphic, this is not considered infringement. A common misconception for designers it that we are allowed to cite 20-25% of an image into our own work; however, Graphic Artists Guild argues otherwise: “There are no formulas for calculating infringement, especially for visual works. And when you think about it, mathematical rules for visual works makes no sense. How could you determine what comprises 25% of a visual work? How would you assign a percentage of value to colors, composition, rendering style, etc.”
Vanseo Design also provides advice to avoid copying someone’s work. They suggest taking inspiration from a layout design or abstract objects, such as a car or furniture design. While this may be more general, Vanseo suggests that taking “inspiration from the layout of a magazine article or the colors of a painting.” Additionally, they say it is “unlikely your design will be seen as a copy since the source is far enough removed from the finished design.”
Other obvious ways to avoid copyright infringement is to cite sources or give credit to a designer or artist by mentioning their name or using quotation marks if you are working with anyone else’s language. Paraphrasing (a process that involves both changing the language of a sentence and the syntax) can help you get your points across while also avoiding plagiarism.
On the other side of the spectrum, in an essay entitled “The Ecstasy of Influence,” by Jonathan Lethem, the writer points out copyright laws and their importance, but also how using something that has been previously published can be beneficial: “[Copyright laws are] a balancing act between creators and society as a whole; second comers might do a better job than the originator with the original idea.” His whole piece is meta-reflective because he pastes excerpts from other essays throughout his article and reveals at the end that he plagiarized to make a point about making old ideas fresh through recycling them. His essay is borderline plagiarism, but he does have a point that recycling work (not necessarily copying, but not necessarily coming up with an “original” idea) can enhance the quality of a piece. He does copy, but he also gives credit at the end.
While there are differing ideas on the issue of what copyright infringement is (which is something that may not be specifically “definable”), it is important to be aware of your inspirations when creating something “new.” You can ask yourself if you’ve seen something similar before. You can avoid copying work through citations and quotations or giving credit where credit is due.