Intellectual Property for the Glass Artist

Part 3 – Other Intellectual Property

Arthur Sale

Moral rights

The Copyright Act 1968 as amended, besides defining copyright, also confers moral rights on an artist (Part IX) as an addition to copyrights. Moral rights cannot be sold or licensed and are inalienably attached to the artist and his or her heirs. They can only be exercised by an individual. They last as long as the copyright does – in other words 70 years after your death.

What are moral rights? Basically they constitute a right for you to be recognized as the creator of your work, for that recognition to be done fairly, and for the work to retain its integrity.

Firstly, if your glass art is displayed somewhere, you have the right to be mentioned as the creator. The display of your name ought to be clear and reasonably prominent. If a photograph is displayed of your work, you have a similar right, though there are exceptions. These can include that it was too difficult to include all names in a series of snapshots or a montage, for example.

More importantly, if one of your pieces is falsely shown in an exhibition or a newspaper as being by someone else, it is under moral rights that you ask for the error to be corrected.

You are also entitled to have your work treated in a non-derogatory fashion. If all your works in an exhibition were consigned to a dark and unattractive corner, you might be entitled to complain and ask for equitable treatment with other artists in the exhibition.

Perhaps more significantly, the same section (s195AK) provides that your work may not be tampered with. Take for example a work shown at the Open Slather Exhibition in Canberra, consisting of three cast and fused ‘books’. Suppose this work was sold to a gallery, and the gallery tried to sell the ‘books’ separately thus compromising the integrity of the artwork. The artist would have recourse under moral rights to stop this action which would damage the integrity of the work.

Similarly, suppose that you made a large work on display in a public space, and several years later you discovered that the Council was going to paint it black, moral rights come to your rescue. You may think this farfetched, but people do chip genitals off statues, or commission another artist to paint out offending bits of murals. It can happen in glass too.

Engineering drawings

Section 21 of the Copyright Act provides that an artistic work in two dimensions is reproduced if it is constructed in three dimensions, and vice-versa. Basically this causes engineering drawings of buildings, for example, to be regarded as equivalent to the actual building, since by following the drawings the building can be reproduced. Copying the engineering drawings is therefore protected as if constructing a replica building.

This will have limited impact on the practice of glass art, but it could apply to a monumental mixed media object. If you get into this situation, check who owns copyright to the engineering drawings you have had made. You may find your art work partly belongs to someone else.

Designs

The Copyright Act and the Designs Act 2003 are linked. The purpose of this is to allow copyrighted works to be applied to mass-produced items by the process of design registration. I simply alert you to this – the matter is complex. If you get involved in mass production, seek legal advice. The nearest glass artists may get to this is in producing printed T-shirts for sale using their own or another’s artwork, but even this probably would not qualify as mass production.

Trademarks

Trademarks and service marks are registered designs, words or logos over which a supplier or service provider has a limited monopoly. Cases that spring to mind are Bullseye© or the Commonwealth Bank logo. Both the registered trademark sign © and the trademark sign TM may be used to signify that a trademark is being used. However, the concept goes further than this: the classic glass Coca-Cola© bottle is a registered design. The words University of Tasmania is a registered service mark.

Just be aware that if you want to make a piece of glass art involving a replica of a Coke© bottle, you’d better get permission from the company or you’ll be confronted with an army of lawyers. The same applies if you want to use a logo, a Disney© character, or indeed any recognizable trademark.

If you’re into production glasswork, you may want to investigate registering your own logo that is stamped or engraved into your production pieces. Paperweight makers may use signature canes.

Patents

Patents are a huge area in their own right. Patents exist to give the inventor of a new technique, process or machine a monopoly for a limited time so that the inventor can recoup their R&D costs, make a profit, and develop new inventions. This is achieved by giving the inventor a manufacturing (or process) monopoly, or through royalties paid by licensed manufacturers or service providers. The subject of patents must be novel, and cannot have been previously published.

For example, I worked out a way of weaving glass. I never had any intention of patenting it, because glass art is generally open to innovation and information, but when I checked I found two other people had also independently discovered the same technique. Either of these would have invalidated a patent, had I applied for one, as being ‘prior art’.

It seems likely that patents will be of real interest to very few glass artists. You are more likely to meet patents in tools and equipment that you buy. Of course, you may develop a new burner or a new glassmaker’s bench... The costs of the patent system are large, and few patents actually recover the costs of registering them.

Arthur Sale is Emeritus Professor in Computer Science and has lectured on intellectual property as it applies to computing, including the artistic aspects of web interfaces. He is also a glass artist and his wife is a textile artist, in both of which areas copyright issues arise.