Hey designers, the 30% Rule Does NOT Exist in Copyright law.

Trademark + IP

Apr 6

If you’re a designer, most likely you’ve heard the following rule (or some variation) for using inspiring work -

“If you’re using someone else’s work for inspiration and/or to make something similar, as long as you change 30% (or even 50%) of the design you don’t need to worry about copyright infringement.”

I’ve even overheard designers tell each other that as long as they change three things from the inspiring work, their new work will not be violating copyright.

Well guess what… There’s no hard and fast rule about the percentage or number of changes that you can make to be safe from copyright infringement! So, you could be infringing on someone else if you aren’t aware of what copyright infringement entails.

The point of copyright law is to protect against unauthorized reproductions of copyrighted work.

Artwork and designs are protected by US Copyright Law. Even those works that aren’t registered have certain innate protections under US Copyright Law. (However, you do need to register a mark to bring a lawsuit for copyright infringement. More on that another day!)

When most people think about copyright infringement, they think about using exact copies of work improperly. In reality, copyright law extends not only to exact reproductions, but also to substantially similar works. So what does it mean to be substantially similar? Think about it this way – if your work looks like it could be in the same collection, come from the same source, or has the same total concept and feel – your work might actually be infringing on someone else!

Yes, everyone uses some sort of inspiration for their work. But if you’re using an inspiring work, and only make cosmetic changes, that’s a huge no, no! Cosmetic changes are types of changes that are made to some aspects of the design, but leaving other predominate parts of the unaltered or very similar. Things like size, color, and orientation are all considered cosmetic. Only making cosmetic changes is a recipe for potential infringement.

It can be helpful to compare the two works from the ordinary person’s subjective perspective. How similar is your work with the inspiring work? Would a layperson think the designs are done by the same designer? Do the designs have many of the same elements? You may need to revisit your design.

Certain things cannot be copyrighted – so you’re probably not infringing if you reuse certain elements.

I know what you’re thinking, well how the heck are there so many businesses with similar aesthetics or design assets? The good news is just because your work, style, aesthetic is similar to someone else’s doesn’t mean you are automatically infringing someone else’s copyright. Not every element of design is copyright-able.

There are exceptions to what can be copyrighted—certain things cannot be copyrighted, and certain assets of work are unprotectable. Individual words, single colors and short phrases are not protected by copyright. Single elements that are standard shapes usually cannot be copyrighted either – things like dots, lines, diamonds, etc. Where these elements could be copyrighted is if they are uniquely drawn/created – a standard star cannot be copyrighted on its own, but a hand drawn star that is unique in its shape may be able to be copyrighted as part of a large design.

A great example of this is the gold dot pattern. You’ve probably seen tons of products out there that use a got dot pattern (on cards, notebooks, calendars, and more). Did you see someone using a gold dot pattern on a card/blog/etc? You can’t copyright a gold dot, so if you want to use a gold dot pattern, you (most likely) can! When you should be worried is if you create your own card/blog that looks and feels the same as the one that inspired you, gold dot and all.

Can you ever use someone else’s work in a similar way?

There are also a few exceptions as to when you can use other’s work in a substantially similar way. First, copyright infringement is unlikely if you located the inspiring work in the public domain (meaning the creative work no longer has any intellectual property rights attached to it most likely because they’ve expired). Works in the public domain are usually marks that are quite old, as copyright only lasts for certain periods of time –depending on how/when it was published it could 70 years after the death of the author or up to 120 years after publication.

The other exception is fair use. Under fair use, you can use another’s copyright under certain conditions without permission from the owner. You can use other’s copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research. This exception also allows you to use an artistic work for a limited and “transformative” purpose, such as to comment upon, criticize, or parody. However, when using a copyrighted work under fair use you have to consider:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes (commercial use is less likely to be considered fair use);

2) the nature of the copyrighted work (factual works are more likely fair use than creative works);

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (the more you use the less likely it will be seen as fair use); and

4) the effect of the use upon the potential market for or value of the copyrighted work (if the use will cause harm to the owner’s use in the market, not fair use).

So next time you’re using an inspiring work to create something new, don’t forget to take all of this into consideration!