The Relationship Between Copyright Law and Design Law

The relationship between copyright law and design law (currently known as “design rights”) frequently arises concerning product designs. The distinction between these laws is rooted in their respective purposes. Copyright law aims to protect artistic works such as paintings, sculptures, diagrams, photographs, and other works including literary, dramatic, musical, and architectural creations. Design law aims to protect the visual form of products, where protection covers the aesthetic elements of the product rather than functional elements necessary for its use.

Conditions for Protection: Copyright vs. Design Rights

To protect a work under copyright law, it must meet two minimal conditions outlined in Section 4 of the Copyright Law. First, the work must be original, meaning its source must be the creator, without requiring special creativity in this regard. Second, the work must have physical fixation, such as recording a musical work or painting an artistic work.

In contrast, design qualification conditions are somewhat stricter. First, according to Section 6 of the Design Law, the design must be novel, meaning it must be substantially different from all designs published worldwide, whether officially registered or not. Second, according to Section 7 of the Design Law, the design must have unique character, creating for its user an overall impression different from the general impression created by other published designs.

Unlike the minimal originality requirement, the novelty requirement is more demanding as it requires substantial difference from any design published before the design registration application. In contrast, the originality requirement does not negate copyright protection for a work substantially similar to another work as long as both works originate from their respective creators. Therefore, protection conditions in design law are stricter than those in copyright law.

Registration Requirements: Copyright vs. Design Rights

Copyright law does not condition its protection on copyright registration except in a small number of countries that allow copyright registration such as the United States, Russia, China, France, India, and Japan. In other countries, protection of the work arises upon meeting Section 4 conditions as detailed above. In any case, it is recommended to deposit the work with a law firm to facilitate proving work priority and prima facie ownership.

In contrast, the Design Law establishes a stricter requirement and conditions design protection on its registration, thus requiring registration in each country where protection is desired. However, the new Design Law added an exception whereby an unregistered design offered for sale to the public within six months of its publication, meeting novelty requirements and having unique character, is entitled to protection but for a shorter protection period of 3 years instead of 25 years.

Duration of Protection: Copyright vs. Design Rights

Copyright protection duration is the longest granted in intellectual property law, generally extending to 70 years after the creator’s death (according to Section 38 of the Copyright Law) with several different periods for joint creators (according to Section 39 of the Copyright Law), state-owned works (according to Section 42 of the Copyright Law), and so forth.

In contrast, the Design Law grants protection for 25 years from the design registration application date or 3 years of protection from the publication date for unregistered designs.

Possible Models for Addressing Law Overlap

Since both laws deal with aesthetic visual elements, there is a tendency to confuse between them. There is a common desire to present designs as works due to the favorable conditions in copyright law regarding protection conditions, registration requirements, and protection duration. There are 3 possible models for law applicability:

1. Cumulative and parallel applicability – if both laws are suitable, their established rights will apply together.
2. Cumulative and alternative applicability – rights accumulate but protection is alternative or limited.
3. Exclusive applicability of one arrangement – applicability of only one law.

The Model Adopted in Israel

Section 7 of the Copyright Law states that if conditions for a design exist, copyright law protection will not apply, but rather design law protection. In other words, exclusive applicability of design law.

The court’s position also supports this interpretation. In the Fisher Price Inc. v. Doron Import and Export Ltd. ruling, they discussed the relevant law for protecting a rocking chair with an embossed lion drawing, which, having an aesthetic aspect, could potentially fall under either law. The ruling determined that indeed in case of overlap between the laws, design law protection would apply, and the rocking chair itself constitutes a design. However, they examined the question of which law would apply to a work embossed on a design. Regarding this matter, Justice Rubinstein established the substantial separation test whereby if the work can be substantially separated from the object such that it exists independently of it and stands alone under Section 4 conditions of the Copyright Law, it will be protected by copyright law. In this case, it was determined that the lion drawing could exist separately from the chair and still appear as a work, thus copyright law protection applied to it.

Professional Guidance for Copyright and Design Registration and Protection

As a leading intellectual property law firm, our office has over 30 years of experience representing over 8,000 clients and extensive expertise in protecting copyrights and designs of all types. The office has a professional team of intellectual property lawyers providing legal advice to creators and designers both in rights registration and legal protection in case of infringement.

*The aforementioned in this article and on the website in general should not be considered as legal advice and the things written in it should not be considered as a substitute for individual legal advice, but a personal opinion and/or a general explanation only. Of course, you should not rely on and/or act in accordance with the above without individual legal advice from an attorney

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