Copyright vs Intellectual Property in Landscaping: What Designers and Contractors Need to Know
A vexed question that comes up time and again in one form or another – recently posed by one of my consultancy clients – is that of copyright. I am not a lawyer, but have spent many years dealing with all sorts of problems, and if you have any queries about my statements, they are made honestly and hopefully, will prove useful, even if only as a guide.
First of all, Copyright and Intellectual Property Rights are (almost) the same thing. Copyright is the word used to describe something that has been written or given in a public forum e.g. a comedians joke. I.P is used to describe something that has been invented e.g. a new vacuum cleaner or crisp flavour.
Both words are used to convey ownership of someone’s skills and talents. I appreciate that this is a simplistic interpretation, but is pretty accurate as far as we, designers of gardens, are concerned.
On a day to day basis, working with general customers, all designs and planting plans remain our copyright, although we assign that right to the client upon receipt of final payment of our invoice. Unless otherwise forbidden by a clause in the contract, there is no reason why you cannot use that same design again and again should you choose to do so.
If you are designing for a client at a public show e.g. Chelsea, you remain the designer, and retain all copyright to that plan, again, unless you have forfeited that right to your sponsor in the words of your contract (but how many gardens do The Telegraph or Help The Aged sell?).
There is a difficult area to be wary of in a design and built project that becomes a public area or which requires a degree of legalistic warranty. An example of this would be Eton College New Music Schools, where I designed a large water feature as part of a design & build package. My client was ultimately the College, yet payment was made through the Main Contractor, so in the event of a claim, the legal chain would be quite complicated! Yet the ultimate responsibility for the design remains mine.
Another grey area – I constructed a Gold/Best in Show Chelsea garden, designed by Peter Rogers FSGD and sponsored by Alfred MacAlpine – the house builder. I went on to design and build three more gardens for MacAlpine at Chelsea, and one of my other builder clients unfortunately used a photograph of that Gold exhibit on their (rival) brochures! Naturally, MacAlpines were not best pleased! However, there was nothing anyone could do about the matter unless it could be proved that a customer had purchased a house from the other developer because they had seen the photograph and bought the property on the strength of that picture. And only then, if they wanted to make a claim against the builder for some other reason.
With modern technology, Face Book, Instagram and a host of different libraries showing projects and identifiable schemes without referencing either the designer or photographer, it is almost impossible to control or police the subject of copyright.
That is no reason why you should not endeavour to try to protect yourself!
