How to Patent Artwork?

When asking how to patent artwork in the United States, it must meet specific originality, ornamental, or manufactured characteristics. In most instances, a copyright is more suitable for literary, dramatic, musical, and artistic works, such as paintings and sculptures. But if your art is in a craft, such as designing jewelry, furniture, or clothing, you should understand the basics of how to patent artwork.

What Works For You: Copyright, Trademark, Or Patent?

To determine if your artwork is best served by a copyright, trademark or patent, it is import to understand the differences between them and what protections they provide.

  • Copyright: A copyright ensures pictures, paintings, music, words, and other original works of creativity cannot legally be duplicated and disseminated without the maker's authorization. U.S. copyrights guarantee that the artwork you produce remains your property for your lifetime and 70 years afterward unless you or your heirs sell or transfer the copyrights. The United States Copyright Office offers a "How To" tutorial that outlines how to get artwork copyrighted.
  • Trademark: A symbol, word, design, phrase, or any combination, that is uniquely distinguishable in making one product “functionally indistinguishable from competitors” in commerce, advertising and marketing, are examples of what can be trademarked under U.S. law. Think, for instance, of Nike and Reebok. They make the same gear, but their trademarks set them apart. Trademark rights can be secured through the U.S. Patent & Trademark Office (USPTO).
  • Patent: U.S. patent law defines something as “patentable” if it is a process, a machine, a manufactured article or a “new composition,” such as a newly-created pharmaceutical. Generally, this means that abstract ideas, laws of nature, physical phenomena, mathematical formulas, naturally-occurring substances, and anything done entirely with the human body, such as a new technique for treading water at sea, cannot be patented. However, some artwork, such as dress designs, fabric patterns, and jewelry, can be patented.

Patent Types

The key components to patentability are that the creation must be novel and not self-evident. Oddity implies that nobody else has concocted the creation before you did. There are generally two types of U.S. patents: Utility and Design.

Utility patents, the most common type of patent, addresses function while Design patents apply to form. Anyone seeking to patent artwork is almost always going to apply for a Design patent.

According to the USPTO, artwork that features “the ornamental design for an object having practical utility” can be eligible for a Design patent. Examples include Coca Cola’s glass bottle, the Statue of Liberty, the badge of the American Legion, and a variety of iPhone attributes.

Patent Artwork

The actual application process is relatively straight-forward. Generally, there are two options in filing for a Design patent:

  • Provisional Applications: These are the “patent pending” designations occasionally seen on products. They are, essentially, “placeholders” that give the artwork precedence over potential competitors, but it has not been officially submitted to the USPTO for ultimate scrutiny. This allows patent applicants up to one year to assemble all support material and to determine if the product is truly distinct.
  • Non-Provisional Applications: This is the formal patent application that initiates the USPTO review. It means the applicant has provided all the necessary information to support the artwork, made the case, and now it is in its completed state and ready for consideration. Artwork cannot receive a Design patent without its non-provisional application being formally approved by the USPTO.

Application & Patent Fees

A Design patent could be secured for as little as $900. The basic breakdown is $330 for a patent application, a $220 examination fee, and up to $540 for a patent search fee. Other fees:

  • Provisional Patent Application Fee: $65.
  • Non-Provisional Patent Application Fee: $400, search fee.
  • Patent Issue fee: Can range from $450 to $1,185 for a “small entity,” and up to $2,070 for a “large entity,” including formal publication of patent. 

Once the USPTO issues a Design patent, the owner is responsible for paying maintenance fees 3½, 7 ½, and 11½ years after issuance. The current large entity/small entity maintenance fees are $1,150/$575 at 3½years; $2,900/$1,450 at 7½ years and $4,810/$2,405 at 11½ years

Obtaining a Patent

The USPTO’s Design Patent Application includes: 

  • A preamble. State your name, title of the artwork, and a brief description of the nature and intended use of the artwork in which the design is embodied.
  • Cross-reference to related applications, if applicable.
  • Statement regarding federally-subsidized research or development, if applicable.
  • Description of the figure(s) of the drawing.
  • Feature description.
  • A single claim.
  • Drawings or photographs.
  • Executed oath or declaration.

Things You'll Need

The application must be accompanied by drawings, schematics, illustrations or photos of the artwork. This is the most pivotal component of a Design patent application because the artwork is usually visual.

In completing the Design patent application, include your name, title of artwork and a succinct outline of the artwork's use, which will usually be "decorative." Include any existing artwork-related Design patents in the Information Disclosure Statement. If you have received any subsidies from the federal government, make sure you include that.

The irony is on one hand, you must be succinct, on the other you must expound on the “composition structure or medium” of the artwork.

More often than not, you’ll need professional schematics or graphics technicians, a technical writer, and a patent attorney to successfully navigate your Design pattern application from concept to commercial viability.

If you have questions about how to complete the USPTO’s Design patent application, you can call the Washington DC office at (866) 217-9197. They will have people on hand to answer your questions.

As in most cases, in dealing with most bureaucracies, if you can present them with a question they haven’t heard and answered before, well … it’s a good sign you that you just may be on the way to getting a patent.

That is, of course, if you’ve done due diligence. That you have done what you needed to do. If you haven’t, well … you’ll be apprised of those shortfalls in short order.

The Real Cost

There is a trade-off in publicizing your artwork. It makes it more accessible to others to duplicate without your consent. This could happen without your knowledge. Once you discover your artwork is being used and distributed without your authorization, it is often too late.

In fact, you could be sued for claiming someone else is using your design. It happens all the time.

There are many factors that can influence how much it costs to secure a Design patent. Any patent application can be derailed by any one of an array of minor mistakes. Even the most thoroughly precise applications can be nixed by patent examiner’s ruling to the USPTO’s internal review board. Even issued patents get challenged by rival artwork generators and potential competitors in federal courts.

The cost of revising applications, defending patents, challenging lawsuits and maintaining the integrity of the patent all require the assistance of professionals, including USPTO-registered patent attorneys.

A patent lawyer, although can charge between $200 and $400 an hour, can actually save a patent applicant a great deal of money. Namely, they can analyze a prospective patent application right from the beginning to determine if it is worth, at least, between the $5,000 and $10,000 it will cost for an independent inventor to bring his product from bench to brand.

Except in rare cases, all these resources are necessary to be successful in the contemporary patenting environment. Decades of U.S. Supreme Court, U.S. Appeals Court and U.S. District Court rulings have created landmines of legal entanglements that an unwitting inventor can inadvertently stumble into and risk not only the potential patent, but end up being sued for even applying for one. A complex matrix of regulations imposed by Congress, as well as administrative rules orchestrated by the USPTO, has made applying for patents in most cases to be a highly specialized and complicated procedure.

In many ways, the system is rigged against the individual, independent inventor who can follow all the rules and scrupulously adhere to the procedural requirements of the application process, even overcome technical nitpicking and bureaucratic setbacks, only to be challenged in court by a corporate entity with the unlimited resources to suppress a new product from ever getting to the market, essentially bankrupting an individual who had the temerity to have a good idea.

Therefore, not only can a USPTO-registered attorney truly analyze the commercial viability of a product, but be an advocate in defending the integrity of a patent. Unfortunately, court challenges have become almost a standard component of the patent process, especially of a product is, indeed, truly innovative.

Why So Much?

A patent attorney is not simply a lawyer who is interested in shepherding new ideas and inventions through the process of legal validation in anticipation of commercial viability. To be a patent attorney, a lawyer must pass an examination to be officially certified and registered as such with the USPTO.

In addition, registered patent attorneys must demonstrate to the USPTO that they are “of good moral character,” have unblemished reputations, and the legal, scientific and technical knowledge necessary to evaluate prospective inventions. In fact, in addition to law degrees, the USPTO requires patent attorneys to have at least bachelor of sciences degrees in engineering or a physical science.

Many USPTO-registered patent attorneys are specialists in high-tech, biotechnology or computers. Some even have PhDs in specific disciplines. They often bring with them technical experts and professionals, such as illustrators for designs. 

How You Can Keep Costs Down

There are steps Design patent applicants can take in reducing the costs of filing a patent even before they make an appointment with a USPTO-registered patent attorney. Among these things is to do much of the preliminary investigatory work yourself.

For instance, anyone can conduct a patent search through Google, by subscribing to services as JSTOR to access academic papers, and by haunting the nearest Patent and Trademark Depository Library (PTDL) to access their files and query on-site search experts on how to find what you are looking for. Patent searches can be tedious because they require repeated keyword searches of databases that store all patents dating back to 1790. For the ultimate self-conducted patent search, visit the USPTO Search Center in Alexandria, Va.

For advice on how to keep patent costs down and assistance in patent searches, seek out other artists, inventors, authors and small business owners to pool intellectual resources and share advice and experiences that all can benefit from. There are a wide range of social media groups committed to aiding and abetting the efforts of independent artwork designers in bringing their ideas to fruition.

Another idea, rather than hire an attorney until it is necessary, is to contract a registered patent agent to help you conduct your search and in putting together your preliminary patent package.

A patent agent can do most of the same things a patent attorney can. In fact, the USPTO-certification for patent attorneys actually is, officially, as a “patent agent.” Patent agents can prepare applications and carry it through the process as well as an attorney can. In most cases, they can be less expensive.

However, since patent agents are not attorneys, they cannot litigate in courts in patent lawsuits, draw up contracts, authorize licensing and trademark agreements.  The bottom line is while a patent agent could be a less expensive option in being a hands-on patent processor, sooner or later, you’ll need to hire a patent attorney.

If you need help determining how to proceed in submitting a Design patent application, you can post your legal needs on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.