by Attorney Richard Stim

Can you stop others from copying artwork or craftswork that borrows from nature? This article explains the legal rules.

Vickery Design, a candle manufacturer, sells candles shaped like corn. In 1999, Vickery tried to stop another company from making corn-shaped candles. The judge ruled that Vickery's candle was not copyrightable because it accurately reflected the way corn occurred in nature.

Nature and the Public Domain

The basis for the rule that you can't claim rights to nature is that the birds, bees, flowers, and the like are in the public domain. An artist can't copyright the spotted pattern of a leopard, a taxidermist can't copyright a stuffed leopard, and a Hollywood model maker couldn't protect a synthetic head that replicates a leopard's. For example, in 1987, Peter Rachel, a maker of synthetic animal heads, was not able to stop Banana Republic from using similar but not identical animal heads in their retail stores.

The Limits of Copyright Law

Unless an artist can demonstrate a variation on what occurs naturally -- for example, a corn candle in which individual kernels were artistically modified -- you can't stop someone from copying nature under copyright laws. This, however, is not an issue for many artists who borrow from nature, since variations on nature occur inherently in the creative process. In fact, these artists might argue that their goal is to transform or process nature (or to paraphrase author Franz Grillparzer, "art compares to nature like wine to the grape").

The less a work replicates nature, the easier it is to protect under copyright law. For example, the makers of plush animals that combine fanciful and representational elements of animals have consistently stopped infringers. In another instance, a 1993 case, the company Wildlife Express created and sold duffel bags that had heads and tails resembling bears, pandas, ducks, and elephants. The company sued to stop Carol Wright Sales from selling similar duffel bags. The court ruled for Wildlife because the animal heads and tails contained imaginative artistic expressions and were not lifelike representations.

Design Patent Law May Help

Some works that can't be protected under copyright law might still be protectible under design patent law. In general, design patents are more expensive and time consuming to acquire than copyright protection, but they provide a broader scope of protection for art.

Design patents have proven friendly to replications of nature. In 1997, Alan Philipson and his son, Andre, acquired a design patent for a decorative bead shaped like a woman's breasts. The Philipsons sold the patent to a New Orleans company, Superior Merchandise, and the design quickly became the best-selling bead in the company's line -- especially popular during Mardi Gras when celebrants on floats throw thousands of beads to parade watchers.

Superior later sued a competitor, M.G.I. Wholesale, who had begun selling a similar bead. In defense, M.G.I. argued that the U. S. Patent and Trademark Office (USPTO) made a mistake granting the design patent to the Philipsons, arguing that nature -- in this case, the human anatomy -- can't be appropriated by one person. The judge didn't buy M.G.I.'s argument. The Philipsons were not claiming rights in the human anatomy, said the judge, they were only claiming rights for their anatomical design on beads. The judge upheld the patent and declared M.G.I. an infringer.

To acquire a design patent, your design must be a new ornamentation for a functional object -- for example, a new design for a candle or a jewelry box. You must file your design patent application with the USPTO within a year of your first sale or public disclosure of the design. If you're in doubt whether you qualify for a design patent, contact an attorney specializing in intellectual property law.

Limits of the Law

In summary, if you're concerned about stopping others under copyright law, don't make exact replications of naturally occurring flora and fauna. If you want to create works that replicate nature and you use that work to ornament a useful object, consider filing for a design patent.

But be aware that copyright law and design patent law protect your designs and expressions, not your ideas. For example, if you created a fanciful bee pin, you could stop others from making copies of the pin, but you could never stop others from using the idea of a pin in the shape of a bee or the idea of a jewel encrusted bee.