It’s not (just) an album cover, it’s a registerable design
Walk out of any gig or concert and you will likely be welcomed to a ‘black parade’ of counterfeit merchandise.
In a previous article, Leah Calvert discussed the benefits of using trade marks as a form of protection rather than relying on automatic copyright protection. But what more can bands or artists do to protect their intellectual property (IP)?
One option is through registered design rights (RDR). While copyright can provide some protection, a RDR provides a clearer scope of protection that can be used to safeguard aspects of the artist’s discography. This form of intellectual property provides a relatively cheap option for bands to obtain a registered right.
How can an artist or band use a registered design?
A RDR is an IP right that can generally protect the look and feel of a product. In many countries, RDRs can protect the surface decoration of a product. This can also extend to protecting the visual artwork and/or logos on album covers.
Often album cover artwork will not only be featured on the album itself, but used on many merchandising items. There are countless album covers throughout history that have a ‘flair for the dramatic’ from Pink Floyd’s Dark Side of the Moon (1973) to Charli XCX’s Brat (2024). As such should be protected just like any other aspect of the artist’s business.
So when should an artist or band consider a registered design?
In order to avoid a lesson in ‘disasterology’, thinking about IP well ahead of an album launch can avoid ‘a boulevard of broken dreams’. In many countries and regions like the UK or EU, if you have published the album cover or start using the artwork on products – referred to as a prior disclosure – and then later file a registered design for the artwork, the prior disclosure may not count against you if you file within twelve months of the original disclosure. This is a more stringent requirement than for trade marks. However, there is the slim possibility that a third party could independently create the same design after launch and prior to registration. If this happened, that third party might be entitled to use it freely.
What is the benefit of registering your album art as a registered design?
It is no secret that many touring bands and artists make a large percentage of their profit from selling merchandise. What might be ‘a day to remember’ for the audience could mean the world to a band. Bootlegs eat into profits, making it difficult for emerging bands to keep financing themselves to become fully established.
The prevalence of illegal merchandising may seem like ‘a fever you cannot sweat out’, but relying on registered IP puts bands in a better position to get counterfeit goods removed from stores. It is a general rule that registered rights provide more security when compared to unregistered rights.
At Barker Brettell, we are always looking at the best way to help our clients best protect their intellectual property.
If you would like further advice on this, please contact the author or a member of our Design and Copyright team.
