This past weekend, I was asked to speak at a Stained Glass conference, which was being hosted in my city, Buffalo. The event was presented by The Stained Glass Association of America (https://www.stainedglass.org/). I have been friends with the Executive Director for several years after meeting her through a networking group. She identified a need for people to understand what their rights are if their stained glass designs are copied. Also, one of the presenters at the conference had a story about having his designs copied and how he navigated the situation. So we decided to co-present a talk about Protecting Stained Glass with Intellectual Property.
The other presenter spoke first about his experience with litigating a copyright claim. From there, I went in to discuss the different options for protecting stained glass through the different categories ofintellectual property.
First up was trade secrets and patents. Because these typically cover new and non obvious inventions, unless there is a new process for making stained glass, trade dress and patents don’t help most people working with stained glass. The processes are well-known in most cases, but if there is some new process, these two categories may apply.
Trademark was next. Trademark can help a stained glass artisan protect their brand. So if someone has a certain design aesthetic, that can be indirectly protected by trademark. People will associate that design aesthetic with that particular brand and may develop brand loyalty. For example, if they don’t see that brand name attached to a work of stained glass, then the person may not buy the stained glass and wait until they find something from their preferred brand.
Finally, we discussed copyright. This is probably the most relevant category of intellectual property for purposes of protecting stained glass. Copyright covers original works of authorship, including creative works such as stained glass design. As soon as someone creates a stained glass design in a tangible form of medium, copyright attaches and allows the author to copy and distribute and make derivative works of the original design. For example, most stained glass artisans will create a new design using colored pencil on paper. The copyright gives them the right to make a derivative work of that design, in this case, a stained glass representation of the design.
Because stained glass designs are so easy to find on the internet, it is very easy for someone to see the design and use it to make their own stained glass. Even if the stained glass design is changed a little bit, it is likely to be deemed a derivative work of the original design and is likely copyright infringement. The copyright owner needs to demonstrate that the infringer had access to the work and that the work is substantially similar to the original work in order to establish copyright infringement. As one can imagine, substantial similarity is somewhat subjective.
If copyright infringement is demonstrated, then the original author may obtain actual or statutory damages. Statutory damages are often higher than actual damages, but they do require that a copyright was registered with the Copyright Office. Registering the copyright is not necessary in order for copyright protection to attach, but one major benefit to doing so is the right to statutory damages in the case of copyright infringement.
The flip side of enforcing your copyrighted work is making sure that you don’t infringe someone else’s copyright. In this case, be mindful that you can look to another artist for inspiration, but try to stay away from using exact or substantially similar design elements in your work.