How to Patent Artwork: Everything You Need to Know
When asking how to patent artwork in the United States, it must meet specific originality, ornamental, or manufactured characteristics. 11 min read
Updated November 4, 2020:
When asking how to patent artwork in the United States, it must meet specific originality, ornamental, or manufactured characteristics. In most instances, 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 copyright, trademark, or patent, it is important 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, or phrase — or any combination thereof — that is uniquely distinguishable in making one product “functionally indistinguishable from competitors” in commerce, advertising, and marketing is an example 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.
Are Crafts Eligible for Patents?
The crafts industry deserves special consideration when it comes to patent protection. Copyrights can protect the designs and methods of crafters from being imitated and copied. However, copyright protection does not cover certain facets of the craft industry, such as the functional features, or the basic methods involved in creating them.
Crafters who make utilitarian objects, as well as those who have designed a special method of producing the object, will likely need a patent to protect against copies being made.
Not all types of craft are eligible for copyright protection. Examples of non-patentable items include:
Certain parts of the craft may be copyright-protected, such as a graphic design, sculptural art, or other pictorial feature that is not necessarily part of the object itself — it can exist independently. An example is a graphic T-shirt. Although the shirt itself would not be eligible to be protected by copyright, the graphic design that is printed on it may be.
There's often a fine line between what is considered artistic and what is utilitarian. Deciding whether certain features are truly independent of the items' function requires careful consideration. For example, a Shaker basket is not eligible for copyright because it is primarily designed with utility in mind. A contemporary basket that is intended as a decorative object would be different and may be eligible for copyright protection.
If an item is not eligible for copyright protection, it may be eligible for patent protection instead. There are certain qualifications for patentability. First, the item must not be obvious, meaning that an average person who is skilled in a related field would not come up with the same item or method for producing it. Also, the item must be novel, which means that nobody else has already designed and produced it.
Crafters in the U.S. are given one year from the first time the item is offered for sale, used by the public, or published to file for a patent. After one year passes, the item is no longer eligible to be patented. However, in other countries, the item may not be patented if it is sold or used by the public before a patent application is filed.
Filing for a Copyright
If the item is better suited to copyright, certain requirements need to be met. The item must be original and not copied from someone else's work.
As long as the item is eligible, though, it is protected as soon as the item is produced, or “fixated in a tangible medium.” No particular registration is needed to obtain this protection, nor does approval need to be granted by a Copyright Office.
The only time you would need to get a copyright registration certificate would be if you plan to file a lawsuit for infringement. However, it's still a good idea, because the artist can lose some legal protection if they don't obtain the registration certificate within three months of the first publication or production. Without this registration, an artist may not be able to recover the cost of an attorney or to receive statutory damages.
It isn't difficult to obtain a copyright registration certificate. A two-page form, which is available from the Copyright Office, must be filled out and sent in with a $20 fee and three copies of the item to be protected. The office will also send an instruction booklet, upon request.
Is a Published Item Eligible for Copyright Protection?
Publication of an artwork does not mean that it can legally be copied. On the contrary, it strengthens the artist's protection. An artist can sue for copyright infringement if they can prove that there is substantial similarity between the item produced by the accused person and their own original work. The publication can make this easier to prove.
On the other hand, the publication does make it easier for others to copy an artist's work, which may happen without the artist ever knowing about it. This is especially true if the item is published and available on the internet; the artist would likely have no way of knowing their copyright was infringed upon.
Therefore, artists need to keep this risk in mind before allowing their work to be published either in print or on the internet. They may wish to place stricter controls over who has access to their work.
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, address 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 an “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.
The actual application process is relatively straightforward. Generally, there are two options in filing for a design patent:
- Provisional Application: This relates to the “patent pending” designations occasionally seen on products. They are, essentially, placeholders that give the artwork precedence over potential competitors while the artist prepares and submits their final patent application and awaits USPTO approval. A provisional patent allows patent applicants up to one year to assemble all support material and to determine if the product is truly distinct.
- Non-Provisional Application: 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 and made their case. At this point, the application is in a 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 patent 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 the patent.
Once the USPTO issues a design patent, the owner is responsible for paying maintenance fees at 3.5, 7.5, and 11.5 years after issuance. The current large entity/small entity maintenance fees are $1,150/$575 at 3.5 years; $2,900/$1,450 at 7.5 years and $4,810/$2,405 at 11.5 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 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, the title of the 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 that, on one hand, you must be succinct, but 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, D.C., 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, 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. If you haven't, you'll be apprised of those shortfalls in short order.
The Real Cost
There is a trade-off in publicizing your artwork. The publication makes your artwork more accessible to others, so it will be easier for them to duplicate it without your consent. This could happen without your knowledge. By the time 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.
Many factors 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 a 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.
Although patent lawyers often charge between $200 and $400 an hour, they 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 the $5,000 to $10,000 (or more) that it will cost for an independent inventor to bring his product from bench to brand.
Except in rare cases, all of 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, risking not only the potential patent but also a potential lawsuit for even applying. 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. Even if you manage to follow all the rules and scrupulously adhere to the procedural requirements of the application process — and even overcome technical nitpicking and bureaucratic setbacks — you can be challenged in court by a corporate entity with the unlimited resources to suppress a new product from ever getting to the market. Situations like this can essentially bankrupt an individual who just 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 they can also be an advocate in defending the integrity of a patent. Unfortunately, court challenges have become almost a standard component of the patent process, especially if a product is 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.
Also, registered patent attorneys must demonstrate to the USPTO that they are “of good moral character,” have unblemished reputations, and possess 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 a Bachelor of Sciences degree in engineering or physical science.
Many USPTO-registered patent attorneys are specialists in technology, 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 that design patent applicants can take to reduce the costs of filing a patent even before they make an appointment with a USPTO-registered patent attorney. Among these 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 visiting 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, Virginia.
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 is a wide range of social media groups committed to aiding the efforts of independent artwork designers in bringing their ideas to fruition.
Another idea, rather than waiting to hire an attorney until it is necessary, is to contact a registered patent agent for help as you conduct your search and put 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 them through the process as well as an attorney can. In most cases, patent agents can also be less expensive.
However, since patent agents are not attorneys, they cannot litigate patent lawsuits, draw up contracts, or authorize licensing and trademark agreements. The bottom line is that while a patent agent could be a less expensive option, sooner or later, you'll need to hire a patent attorney.
If you need help with a design patent application, you can post your legal need 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, Menlo Ventures, and Airbnb.