Ahhh, inspiration. Designers crave it and seek it out. (Truth be told, lawyers do too). We chase that elusive spark necessary to launch the project, to satisfy the client, to produce work not only worthy of your fee, but also of your talents. Relax, I am not about to tell designers how to go about finding their inspiration. Each designer has their own process. To be realistic, I am not really talking about documenting your inspiration, I am actually talking about documenting your research and then documenting the development of your ideas.
But lawyers are in the business of risk management. In my opinion, the single largest risk in the design business is infringement/plagiarism. All designers know that it is taboo to hold out the work of another as your own, but we are influenced. As recent lawsuits against Led Zeppelin for “Stairway to Heaven” and Ed Sheerin for “Thinking Out Loud” for copyright infringement can instruct us, inspiration is a difficult subject to address and even unconscious influence can lead to difficulties. While the music industry does have its own difficulties apart from the inspiration, in that notes must be put together in a way so as to avoid an atonal assault on the ears and thus some classic riffs are almost natural, inspiration can be documented.
From a legal perspective, copyright is about the expression of an idea, it is not about the idea itself. So it is possible for two individuals to consider the same idea and come up with different interpretations and representations. Conversely, it is possible for to individuals to consider two different ideas, but arrive at a similar single representation of those disparate ideas. The tricky scenario is when two individuals consider the same idea and create similar representations. Such a scenario is not necessarily plagiarism or infringement, but questions could be raised. Given that willful copyright infringement could result in statutory damages of $150,000 per infringement, building a defense is vital.
Where to begin the documentation process is in the research phase. If you are doing the research online, documentation is a simple as saving your search history and browser history. After each session, document the search terms you used and then print or save a copy of the browser history. In the case of printed materials, you can keep scans of what you reviewed, or you can keep a hard copy file (do people other than lawyers still do that?). If you are working collaboratively, say with boards and the like, take pictures and save the work. The important part is to save these materials contemporaneously along with your notes, sketches, etc. Have a policy of saving the research as part of your day to day work process.
So if a dispute arises alleging that you infringed or plagiarized someone else’s work from an online location, you can pull your search history and show that you never went to that site. You can demonstrate what you researched and where you saw the elements that led to your inspiration. If you are not in the habit of retaining your notes and research materials, begin doing so. If an allegation of an infringement occurs having a well-documented research phase can show just where you were looking for inspiration.
Of course a policy may not adequately cover the random inspiration. The “I saw this as I was driving” moment, but even that can be documented with a quick note in your phone or quick picture of what you saw. But it is better to have the note than not.
As you begin working up your designs and comps, the wonderful world of software can come in handy. As you may know, most programs have a massive set of metadata that is created each time you make changes to a document. So the software tracks when the document was created, what was changed, when it was changed, who made the changes, and a plethora of other data. All that data should be maintained in your files for element you are creating. You can strip out the metadata for the version you are sending to a client, but to document your development process, you should keep all the metadata. Similarly, you can create new versions of each element in a new document to show the development of the ideas.
When the issue of infringement is raised, and it is raised often, being able to show early on the facts of your research, the facts of your development, and the facts of your process will assist you to resolve infringement or plagiarism disputes quickly. Of course, if it turns out that the work that you are accused of infringing is included in your research, then you will have a different set of problems, but not insurmountable ones. As I stated before, copyright is about the expression of the idea, not the idea itself. Many lawsuits start with the notion that the infringing party “stole my idea.” But that is not enough, infringement is about the expression of the idea.
If you do not have a current policy for maintaining inspiration, research and development of your work, please contact an attorney who can help you put together a policy and best practices for following the procedure.
MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.
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