How to Patent Your Artwork

Rich Goldstein

Founder & Principal Patent Attorney

I know one of the main challenges artists face is protecting their work from being used without appropriate compensation. If you’re an artist releasing your work, you will soon realize that theft is possible.

Through my years of helping with patent applications for artwork, I’ve figured out the process and the necessary steps involved. So, I’ve decided to detail everything involved using the most recent information.

In this article, I aim to keep you informed about patenting your work. Furthermore, on a broader scale, I want to walk you through how to patent your artwork, including the documentation and requirements necessary. 

How to Patent Your Artwork

As an artist, your work is intellectual property, and you have the right to protect it. One of the best ways to do this is to patent it. A patent gives you exclusive rights to your work. It also prevents others from making, using, or selling it without your permission. This can help you avoid having their work duplicated or imitated. 

Keep in mind that not you cannot patent all works of art. For you to be able to patent an artwork, it must be creative, useful, and non-obvious. Simply put, the work must be novel, distinct from previous efforts, and have some practical application.

Patenting artwork can be complicated and time-consuming. Before you file a patent application, you should seek expert legal guidance. Despite its peculiar difficulties, patenting artwork is a valuable strategy for protecting artwork and ensuring fair rewards for your innovation.

Patent Types

To be patentable, your invention must meet two essential requirements. The invention must be unique and not self-evident to be patentable. This means that no one else created the artwork before you. There are three kinds of US patents

  • Utility
  • Design
  • Plant
An image of an artwork with different colors

The more commonly regarded patents are utility and design patents

Utility Patent 

A utility patent is the most commonly applied for, covering areas like processes, machines, compositions of matter, and new and useful manufacturers. In addition to protecting brand-new innovations, you can get this patent type for improvements. 

Design Patent 

A design patent covers designs that are new, original, and ornamental. A design patent is specific in protecting only an article’s appearance. 

The USPTO states that a design patent requires an artwork with an “ornamental design for an object having practical utility.” A common example is the curvy design of the Coca-Cola bottle. 

Patenting Artwork

The application process itself is relatively simple. In general, there are two options for obtaining a design patent in the process of how to patent your artwork:

  • Provisional Application: a provisional patent is considered a placeholder and basically allows the inventor more time for research to complete or perfect the patent. “Patent pending” on a product is usually an indication of this patent type. It lapses after a year, and the next step would be to apply for a non-provisional patent. 
  • Non-Provisional Application: this is the patent application that provides a granted utility patent. It involves a USPTO review process that reviews your claims and all the supporting documents submitted. 

Design Patent Costs

A design patent can cost anywhere from $900 to $4,810, depending on the entity type and the maintenance costs paid at various periods of the invention’s life.

An image of an artwork with three birds on a branch of a tree

Initial Filing Fees

The initial filing fees range from $900 for a small entity to $1,150 for a large entity. The initial filing fees include the following:

  • Patent application fee: $330
  • Examination fee: $220
  • Patent search fee: Up to $540

Additional Fees

These are some of the additional fees you will have to pay:

  • Provisional patent application fee: $65
  • Non-provisional patent application search fee: $400
  • Patent issue fee: $450 to $1,185 for a small entity and up to $2,070 for a large entity

Maintenance Fees

Once the USPTO issues a design patent, the owner is responsible for paying maintenance costs every 3.5, 7.5, and 11.5 years. These are the current maintenance fees:

  • 3.5 years: $1,150 for a large entity and $575 for a small entity
  • 7.5 years: $2,900 for a large entity and $1,450 for a small entity
  • 11.5 years: $4,810 for a large entity and $2,405 for a small entity

Obtaining a Design Patent

A design patent is obtained by submitting a Design Patent Application to the USPTO. The following is the content of the application per 35 U.S. Code § 154

  1. Preamble, stating name of the applicant, title of the design, and a brief description of the nature and intended use of the article in which the design is embodied;
  2. Cross-reference to related applications (unless included in the application data sheet).
  3. Statement regarding federally sponsored research or development.
  4. Description of the figure(s) of the drawing;
  5. Feature description;
  6. A single claim;
  7. Drawings or photographs;
  8. Executed oath or declaration per 35 U.S.C. § 115

While the process can be complex, it is often advised to get professional guidance from a patent attorney. Individuals can, however, effectively navigate the process of acquiring a design patent for their artwork with adequate preparation.

An image of an abstract painting with different colors

Are Crafts Eligible for Patents?

Yes, depending on the nature of the craft and the level of intellectual property protection needed, crafts can be eligible for patents. Patents safeguard inventions; however, copyright safeguards creative expressions. 

In the context of crafts, a patent can be obtained for a novel and non-obvious process or method of manufacturing a craft product, whereas a copyright can be secured for a craft object’s original design or artistic expression.

Design Patent for Crafts

Design patents are especially important for craft goods with a distinct and beautiful appearance. Design patents cover an object’s visual qualities, such as its shape, configuration, ornamentation, or pattern. For instance, a novel design for a piece of pottery or a brand-new jewelry clasp style could qualify for a design patent.

Utility Patents for Crafts

On the other hand, utility patents protect an invention’s functional elements, such as how it operates and the results it creates. A utility patent, for example, could protect a novel method of weaving cloth or an innovative method of manufacturing stained glass.

A craft may be eligible for design and utility patent protection in rare situations. A utility patent, for example, might protect a new type of pottery wheel for its revolutionary mechanism, whereas a design patent might protect the unique design.

Eligibility and Considerations

Determining what constitutes art and what is practical takes serious thought. A Shaker basket, for example, cannot obtain copyright protection. A modern basket intended for appearance, on the other hand, would qualify.

An image of an artwork with different flowers

If copyright does not work, you can apply for a patent. However, there are some ground rules. The object cannot be obvious, meaning it must be something that not everyone in the field would consider. Furthermore, it must be original, not something designed by someone else.

Crafters in the United States have one year from the date they first sell, use, or display the object to petition for a patent. If you miss that date, you cannot patent the object, so you must act promptly to safeguard your work.

Filing for a Copyright

The United States Copyright law is governed by the Copyright Act of 1976. An item must meet certain standards to be eligible for copyright protection in the United States. 

  • First, it must be fixed in a tangible medium, meaning it must be written, captured on audio or video, or saved as a computer file. 
  • The work must be original, coming independently from the author without plagiarism, albeit it does not have to be fresh or distinctive. 
  • A human must write the work, as artificial intelligence and computer programs are not considered authors.

If an item meets these conditions, it is immediately protected by copyright, and there is no need to register it with the United States Copyright Office. However, registration has various advantages, including creating a public record of your copyright for use as proof of ownership in legal disputes. 

Importance of a Certificate of Registration

A certificate of registration acts as prima facie evidence of the validity of the copyright, transferring the burden of proof to the defendant. Furthermore, registering before infringement may entitle you to statutory damages of up to $150,000 per infringed work and the ability to obtain a court order requiring the detention and destruction of infringing works.

To get a copyright registration certificate, you must complete a two-page form which you can get at the Copyright Office. After filling it out, you make a payment of $20 alongside three copies of the item in question. If you want an instruction manual, one can be provided upon request as well.

Common Copyright Questions and Tips

Here are some tips to help you if you are considering copyrighting your artwork:

Should I Copyright All of My Artwork?

Yes, you should copyright them even if you do not intend to sell or distribute your artwork extensively. This is because copyright protection occurs immediately when an original work of authorship is created, and it lasts for the author’s life plus 70 years. 

Registering your copyright with the United States Copyright Office gives additional benefits, including creating a public record of your ownership and making it easier to enforce your rights if your work is infringed.

An image of an abstract painting artwork

While copyright is formed the moment something is created, it is considerably more difficult to prove that work that has not been registered is yours. So, before you register each piece of work, consider how you will show ownership:

Keep Digital Records of Your Work

Keeping digital copies of your artwork is critical for copyright protection. Creating high-quality digital photographs of your work, noting each piece’s creation date, and storing relevant correspondence are all part of this. If someone contests your work, you can use these records to defend your ownership and originality. A good patent attorney would recommend this, too.

Sign and Date Your Work

Signing and dating your artwork is an easy yet efficient technique to prove ownership. This is especially true for physical artwork like paintings, sculptures, and sketches. 

While signing and date your work is not essential for copyright protection, it can help avoid infringement and make it easier to show your ownership if your work is disputed. Remember that this is not as secure as the first choice because anyone can sign and date something anytime.

Which Pieces Should You Register?

It is entirely up to you to determine which pieces of artwork to register with the United States Copyright Office. However, you should first assess the hazards. Consider the risks before going through the entire application procedure and paying the fees to copyright every piece of work you have ever done. How easily can someone plagiarize your literary, artistic, or visual work?

For example, a highly intricate or abstract painting is one-of-a-kind and impossible to rip off, whereas literary work like a blog post or an E-book can be readily copied and pasted. Another risk is the number of people who see the artwork. 

  • Is it something you publish on social media so you have visual proof of your creation? 
  • Is it artwork being sold in stores, as in the case of licensing? 

Registering copyrights on larger-scale works may be beneficial to protect them and not feel so exposed or vulnerable if you need to take action. Registering your most valuable or economically viable pieces and any work you have already released or intend to distribute in the future is generally recommended.  

How Long Does a Patent Last?

A patent protects your artwork for only 20 years, after which it would be in the public domain. So, opting for a copyright is more beneficial since it lasts up to 70 years. Note that patenting artwork is only practiced in the USA. Therefore, on a global scale, copyrighting your artwork is the ideal option.

An image of an artwork with mountains and people on top

How to Copyright Your Work

It is relatively straightforward to register a copyright. The website can be challenging, and the application procedure can make most creatives dizzy. However, it is feasible. 

To copyright your work with the U.S. Copyright Office, you must fill out an application form and submit it with a fee and a deposit of one or two copies. You can also register your work online at the Copyright Office.

The registrar’s office will review your application once it has been filed. When authorized, you will receive a certificate stating that you registered the work, also known as proof of copyright. This will be posted online for public consumption; keep a copy for yourself!

Frequently Asked Questions 

How Do I Protect My Artwork From Being Copied?

Register your artwork for copyright protection to prevent it from being copied. Copyright protects your work by preventing others from recreating it without your permission. Clearly label your artwork or watermark it. While copyright is inherent at the time of creation, official registration strengthens your legal position in the event of infringement.

How Much Does It Cost to Copyright Your Artwork?

The cost of copyrighting your artwork in the United States is $35. Copyright applications can be submitted online or by mail. While copyright protection is automatic upon creation, registering your work with the United States Copyright Office gives you extra benefits, such as the power to seek statutory damages and attorney’s fees in the event of infringement.

Do Artists Need Patents?

Not always. Artists typically use copyright to protect their paintings, sculptures, and other visual creations. However, you should consider applying for a patent if your work has a novel and non-obvious functional component. It is critical to contact legal authorities to identify the best kind of protection for your artistic work based on its nature.

Conclusion

Patenting your artwork can be complicated and time-consuming. However, it is a crucial step in protecting your intellectual property. Remember that patenting your artwork is not the only way to protect it. You can also copyright your artwork, watermark it, sign it, and keep records of your artwork. By taking these actions, you can assist in safeguarding your artwork from unlawful use.

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