Expert: Nyall Engfield - 8/3/2009

Question
Hi,
I am a professionnal photographer doing mostly commercial work. We frequently use small pieces of fabrics for various company as background in our shots. Because they are only used in backgrounds, I don't think there is any copyright problem. But recently, I begun shooting old samples of fabrics with designs that are old and sometime cropped. I was wondering if there is a copyright issue if I want to sell those photos of fabrics and old design? I could also used them and transform the patterns and colors to something new. Would it be alright?

Thanks a lot for your time and your answer!
Marielou Théorêt

Answer
If an article is made in quantities of 50 or more (such as may be the case for commercially-produced fabrics) then the aesthetic features are protected by industrial design instead of copyright. Industrial design protection is received when a design is registered. The design must be new, and an industrial design must be applied for within one year of disclosure or public sale. The protection remains in place for 10 years from the date of registration.

So in a nutshell, if the fabric is more than approximately 12 years old, then there is unlikely to be any industrial design protection. You can verify this by searching the industrial design database or asking a patent lawyer to do this for you.

If the fabric is a one-off or produced in limited numbers, it may be protected by copyright as an artistic work. In that case you may be infringing copyright if you take a photo and print it. However, if you capture the image and manipulate it significantly with Photoshop, for instance, then it will become your creative work instead, and you will be able to claim copyright.