Copyright Guide: Design, architecture and graphic design

In accordance with the preparatory materials for the Finnish Copyright Act, the principal form of protection intended for applied art is design protection. Copyright protection for objects of applied art is intended only for works of exceptional originality. Legal practice has followed this guideline and thus the prerequisite of originality for works of applied art in the legal practice of the Supreme Court is high.  The Supreme Court rulings, where furniture has been seen as not meeting the prerequisites of originality, are KKO 1932 II 267 bedroom set, KKO 1975 II 25 suite, KKO 1948 II 464 ceiling light and KKO 1976 48 decorative light.

Decorative light that by the Supreme Court ruling (KKO 1976 48) did not meet the prerequisites of originality.

 

Also these bucklets didn't meet the prerequisites of originality by Supreme Court's ruling (KKO 1980 II 3).

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The Copyright Council's decision practice  has moved closer to Nordic policy, where the prerequisites of originality have traditionally been lower than in Finland. Protection has been granted to a folding chair TN 1995:7, a light FYR TN 1997:4, a guest room suite TN 2004:4 and a dining room suite TN 200:4.

The Copyright Council's decision TN 2006:9 considered that the original pieces of furniture in question, such as Eero Aarnio's Pastilli chair,  should receive copyright protection. The decision was economically very significant, as a design protection does not offer sufficient temporal protection for furniture that has reached classic status, due to its short period of protection.

The Copyright Council's decision policy could therefore be characterised by saying, that the applicability of a work or art is not automatically indicative of a high prerequisite of originality.  Elk head decorative schnapps glasses received protection as a work in the decision TN 2006:19,  as the relationship of their intended use to the end result was distant. An ergonomically designed berry rake was not granted copyright protection  TN 2007:7.  The berry rake had been granted design protection, but its period of protection was expiring.

An international trend of copyright's scope of protection seen as expanding, also concerns the copyright of design work. In its ruling of 9th April, 2009, the Supreme Court of Sweden granted a copyright to the Mini Maglite torch, whose external form IKEA had copied exactly. The Supreme Court of Sweden based its decision on the fact that the slim contour of the torch had been extended in such a way that the lamp end covers part of the battery casing and the imperceptible seam, between the battery casing and the main part of the torch, changes the overall appearance so that it is something other than a mere practical torch. The Supreme Court of Sweden stressed that the protection granted to the torch is limited in scope and that this was a borderline case.  Protection 'limited in scope' means that the form of the Mini Maglite flashlight does not receive extensive protection regarding adaptation.  Adapting the external form causes the form in question to cease infringing Mini Maglite's copyright.

Design products' meeting the prerequisites of originality continues to be uncertain and, in addition to potential copyright protection, it is advisable to protect the product using a design right, should this be possible based on the novelty of the product.

In its opinion 1993:5, the Copyright Council found that a fabric, consisting of red lingonberries and green lingonberry leaves on a dark green background, and where a three-dimensional impression had been achieved by the use of various shades of green as the light hit the berries and leaves, was a work in accordance with Section 1 of the Copyright Act. In its opinion, however, the Copyright Council, pointed out that copyright does not protect a motif, but rather the form in which it is expressed in a work. The fabric's copyright could not, therefore, prevent another designer from independently creating a fabric with a lingonberry and leaf motif. 

The Copyright Council's opinion 1989:6 dealt with designer A having created three fabric designs.  The first of designer A's fabric designs consisted of balls, which had been placed on top of each other so, that the farther ball was not completely visible.  A range of different looking fabric designs had been achieved by colouring parts of the balls in different ways. Another design used a pattern, formed of two triangles set on top of each other with their tips pointed at each other. The patterns had been placed either in inclined rows, or lapped, so that they covered almost entirely the surface of the fabric with a variety of colouring. The third design used curved lines to stylise densely standing spruce, forming a spruce copse. There were alternating green and gray dots on the spruce branches, that is, the curved lines. In its opinion, the Copyright Council found that the first and second of the fabric designs were not copyright protected works. Any potential copying of them was, therefore, not significant in terms of copyright.  The Copyright Council instead considered that the third fabric design met the prerequisites of originality and, in accordance with Section 1 of the Copyright Act, was a copyright protected work.

The provisional restrictions concerning works of art under the Copyright Act can also be seen to concern products of applied art, handicrafts and industrial art. Therefore, in accordance with the restrictions in Section 25 of the Copyright Act, a work of applied art may be photographed for an exhibition critique or other critical presentation, and images of a work of applied art may be used as illustration in a scientific presentation which concerns applied art.  Similarly, in accordance with Section 25 of the Copyright Act, works of applied art may be photographed for an art collection or exhibition catalogue to be produced either by printing or by another analogue method. The author's permission is required for reproducing a work of applied art for a digital catalogue.  

Works of applied art are bound by the explicit provision in Section 25 of the Copyright Act, according to which a work of applied art may be used without the permission of the author, if reasons of technical nature or expediency require it. 

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Architectural works are mentioned in the list in Section 1 subsection 1 of the Copyright Act as artistic works protected by copyright.   Explanatory drawings and plastically designed miniature models are mentioned in the list in Section 1 subsection 2 of the Copyright Act as works that are protected as literary works.  An architectural drawing may also be protected as a work of art. Whether an architectural work is expressed as an illustration, explanatory drawing or building, its author is granted economic and moral rights in accordance with the Copyright Act.

The architect or architects, who have created an architectural work, are granted economic rights, the right to reproduce and make available to the public, the right to be named as the author of the work and object to such adaptation of the work as would offend the architect's artistic qualities and value.

Copyright may be born jointly to two or more architects, if they were involved in the decisions that gave the work its architecturally independent and original form. If the architects have each independently created part of the work, copyright may be born for each architect for the respective parts, to which they gave architectural form.

Copyright protects the form of a building that appears as an architectural work. This form can also be protected by design protection.

New inventive solutions created for the building should be protected by a utility model protection or a patent. These forms of protection should be applied for before making the building public. This means applying for a patent or utility model protection prior to having a thesis approved, presenting a building at a trade fair, presenting drawings of a building in an architectural journal or before the building taking part in a competition.  Competition rules, as a form of copyright agreement to transfer rights, shall be discussed below.

Case KKO 1989:149 ​

The Eurohouse S 2 did not meet the prerequisites of originality but the Supreme Court's ruling KKO 1989:149.

The protection of an architectural work is the protection of a work that was born as a result of independent and original work.  The Supreme Court ruling KKO 1989:149 concluded that the prefabricated house model Eurohouse S 2 consists of previously known and widely used in architectural elements.  In the Supreme Court's view, the Eurohouse S 2 did not, as a whole, differ significantly from other commercially available detached houses, that one's options in constructing such a house are often limited, and that the form of such a house is largely dictated by the methods of manufacture and other usability issues. 

Case KKO 1988:4 construction drawing was not protected by copyright.

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Copyright does not protect mere activity. For example, the laborious and very time-consuming HVAC drawings did not receive copyright protection in the ruling TN 2000:10. In this case, the Copyright Council noted that due to the nature of the work, reasons of technicality and expediency essentially determined the form of the drawings, thus lessening the possibility of originality in the drawings. The major force guiding the drawings is the need to fit in the most functional entity for a particular space.  It is likely, that another professional approaching the same work would end up with the essentially the same solutions. In its opinion TN 2007:8, the Copyright Council stated, that the building depicted in the construction drawings was, in external form, a typical Finnish house.   This was a typical house, designed on the basis of a design that is widely in use, also in Finland.  The drawings, or the building depicted by them, didn't receive protection as an  architectural work.  The house design in question, as well as a villa designed for a leisure fair, were considered buildings, whose originality wasn't sufficient and therefore did not meet the prerequisites of originality. 

The prerequisites are met, when a building is independent and original in form. In its opinion TN 2006:20, the Copyright Council considered, that the Valamo monastery conservation and library building is an independent and original architectural work. In the opinion TN 2002:5, the winner of an architectural competition, an office building designed for a magazine publisher, was considered an independent and original work.

The originality requirements for architecture have, in legal practice, demanded such independence and originality, that e.g. a house manufacturer's prefabricated house model was not considered an architectural work in the opinion 2008:6. The Copyright Council has discussed the protection of buildings or construction drawings in its opinions TN 1995:18, TN 1996:4, TN 1997:16, TN 1999 and TN 2002:5.  A building or construction drawings have not met the prerequisites of originality if they have not manifested sufficient independence and originality. 

As far as interior design is concerned one can say, that the interior design can receive protection as a 'gesamtkunstwerk', even though an individual piece of furniture, that is part of the whole, might not be protected on its own. Interior design has received copyright protected in the opinion TN 1995:18.

An architectural work is subject to explicit provisional restrictions under Section 2 of the Copyright Act.

In accordance with Section 25 of the Copyright Act, a building may be adapted by its owner without the permission of the author, if technical reasons or reasons of expediency require it. The matter has been discussed in the Copyright Council's opinion TN 2002:5, which found that, for example, the minor adaptation of the interior stairs of a building or replacing the facade material to a similar but more affordable material, are justified reasons of technical expediency in accordance with Section 25e of the Copyright Act, which, in accordance with Section 25e, can be performed without permission from the architect.

In accordance with Section 25 subsection 3, a building may freely be depicted. This provisional restriction applies to an architectural work, which manifests as a physical three-dimensional building. Therefore, for example, the architect Alvar Aalto's Finlandia Hall may freely be photographed and reproduced as a photograph, for example in a post card, without the permission from the architect. The provisional restriction limits the architect's economic rights, but not moral rights. Therefore, the architect's name should be mentioned when reproducing the work i.e. the post card must mention the name of the author that created the architectural work, the architect Alvar Aalto. The image of the building must also not be published in a manner that offends the architect's artistic characteristics, e.g. in a product advertisement that would be offensive to the architect's artistic characteristics.  Depicting is taken to mean two-dimensional reproduction; photography and drawing.  This provision does not authorise the creation of miniature models or other three-dimensional objects based on the building.  When the building has been photographed or drawn, a copyright is born for the photographer or artist for their photograph or drawing. In using a photograph or drawing depicting a building, one must however respect the moral rights of the original work's architect. 

General information

Copyright protects independent and original creative work.  A work that is created as the result of the creative work by a graphic designer, such as a poster, manual, book design, illustration, postcard, website and web graphics, logo or any other graphic work, can receive copyright protection.

Copyright and trademark forms of protection, such as the right of trade mark and commercial name, are not mutually exclusive. A copyright is legally born at the immediate moment of a work's creation and does not require registration or establishing like trade mark forms of protection do.

This section also discusses websites and web graphics, insofar as it is applicable. Cartoons and illustration are discussed in the section Fine art and photography. Computer applications, user interfaces, databases and catalogues are discussed in the section Computer applications and games.

What copyright protects

Copyright protection is the protection of form. Therefore, the content of a work does not fall under copyright protection.  If, for example, several books are illustrated based on the same subject, each illustrator will receive a copyright for their own work, providing that they have met the prerequisites of independence and originality.

The author's economic rights​

​An author may with agreements transfer their partial or complete economic rights, for example, to a company. Contentually, this may concern a right of use that is restricted in a number of ways, such as a single publication right, a continuous publication right, an adaptation right, a regional exclusive right etc. The agreement is  informal, provided that the right of adaptation and transfer of rights are always be expressly agreed upon.
 

A publisher, to whom the exclusive right to reproduce and publish a work as a book has been transferred, had further transferred part of the manuscript for publication in a magazine. The text could not be regarded as an advertisement or a description, but rather met, in view of its content, the prerequisites of an independent article. In this respect, and as the publisher had not proven that the transfer of the publication right of the article in order to disseminate the book was in accordance with a publisher's good practice, the publisher and magazine publisher were seen to have infringed the author's copyright.  (KKO:1977-II-85)

Reproducing a graphic work and making it available to the public

The right to reproduce means, for example, that a certain number of copies of a picture book are printed, or that a photograph is burnt onto a CD or it is printed. Reproducing means giving the work a physical form. In principle, a copy is created when a work is expressed and is attached to a format, such as paper, or is saved as a file to a computer hard drive. Examples of reproduction therefore include the printing, duplication, copying, recording, photographing or manual reproduction of a work.

The right to make a work available to the public refers, for example, to the sale of a book or its online publication in an electronic format. From the author's point of view, this means that they have the exclusive right to control how, where and when their work is reproduced or made available to the public. 

The author's moral rights
 

The Copyright Act protects not only the author's economic rights, but also their moral rights.  Moral rights protect the author's relationship to their work and relate to the integrity of the author's person. In their creative activities, the author expresses their thoughts, emotions, experiences and knowledge. Therefore, moral rights are generally inalienable. There are two moral rights of the author: the right to attribution and integrity.

An author may only transfer their moral rights, if the situation concerns a use of the work which is limited in nature or extent. For example, it can be agreed with a brochure's graphic designer not to mention the designer's name in connection with the brochure.

The author's moral rights can be violated either by adapting the work in a way that is offensive to the author, or by using the work in a context that is offensive to the author. For example, the use of a work in the context of commercial advertising without the author's consent, may infringe the author's moral rights. The infringement of moral rights is assessed according to objective standards.

Moral right

The right to attribution means that the author of a work must be mentioned in accordance with good practice, whenever the work is reproduced or made wholly or partially available to the public. Thus, the author's name must be mentioned in connection with publication of the work in accordance with good practice and to the extent that the author requests. The manner in which the author's name is mentioned, however, varies depending on the type of work and discipline. The name can be mentioned on the cover of a book, in an exhibition catalogue etc. If the author wants to publish their work anonymously, the author's name must not be mentioned. In practice, the mention of the author may be discreet and does not need to be emphasised. The following example in connection with a work, © 2010 Greta Designer and Designers Ltd., means that the pages have been created by Greta Designer and that, based on an agreement such as an employment agreement, the copyright belongs to her and Designers Ltd. There is no need for a more detailed explanation of how these rights are divided. While negotiating contractual terms, it is good to agree in writing how the author's name should be mentioned, or alternatively it is advisable to include a clause regarding the mention of the designer's name in the terms of delivery or other standard terms used by the designer.

Right to integrity

The author's right to integrity means that a work may not be altered in a manner that infringes the artistic quality or characteristics of its artist . The provision, therefore, prohibits such adaptation of a work that infringes the author's person. Other adaptation rights fall under the author's economic rights. In legal practice, only adaptation that is aggravated in nature is seen as an infringement of the author's right to integrity. Discretion regarding adaptation must always be objective and on a case-by-case basis taking into consideration, among other things, the ideology expressed by the author in their work, as well as the intentions and nature of the alterations.  Adaptation may, for example, concern the digital manipulation of photographs by cropping an image or changing its colours. A work can be adapted in a myriad of ways. It is advisable to agree upon the extent of the right to adapt in writing.

Graphic Works, a Work of Fine Art, a Literary Work or Another Work
 

A graphic work, or product, protected by copyright may be a work of fine art, a literary work or a work that manifests in another way, such as a website. The division of types of work within the Copyright Act does not always follow everyday language conventions. Essential in terms of attaining copyright protection, is that a work meets the prerequisites of originality, that is the independence and originality of a work.

For example, the cover of a book may, in the opinion of the Copyright Council, express such an independent, original and personal contribution of its author (e.g. a graphic designer) that the cover may as a whole be considered a copyright protected work in accordance with Section 1 of the Copyright Act. The Copyright Council has considered that book covers may also include works of fine art of photographic works protected under Section 1 of the Act. A prerequisite of copyright protection, for these products too, is that they express the independent, original and personal contribution of their authors. Photographs that do not meet the prerequisites of originality will nevertheless receive protection in accordance with the provision in Section 49 of the Copyright Act. The Copyright Council also notes that the texts included in the covers of books, such as the title of a book, may in some cases be protected under Section 1 of the act, if they meet the prerequisites of a literary work. 

The Copyright Council has, in its opinion 2004:13, required independence and originality of the composition and layout of labels, for example, as far as the use of text, composition, typography and possible image cropping in concerned, thus allowing the label to meet the prerequisites of a work and receive copyright protection.

A work, under the Copyright Act, is taken to mean a map, an explanatory drawing or graphical representation.

Explanatory drawings and graphical representations are often used in textbooks, handbooks, manuals and as the illustration of scientific - e.g. natural science or engineering - articles. The Copyright Council has, in its opinion practice, also taken a position on explanatory drawings. According to the Council, for explanatory drawings to meet the prerequisites of originality, they must, in their expression, be original in such a way that no expert could independently end up presenting the same things with drawings similar in form. For example, in its opinion 2002:4, the Council took a position on a drawing depicting the habitat of sea-buckthorn. According to the Council, it is unlikely that the growth conditions of sea-buckthorn could even be depicted in another manner by a drawing attached to a scientific article on sea-buckthorn, due to the habitat and growth conditions of sea-buckthorn bushes etc. Therefore, the potential for an author to come to an original and independent result is rather limited, due to the specific circumstances guiding the treatment of the subject. Based on the aforementioned grounds, the Copyright Council decided that the drawing depicting the habitat of sea-buckthorn did not sufficiently express prerequisite originality and independence.  Therefore, the drawing in question remained outside copyright protection.  The drawing can be used, for example, as the illustration of another text on the same subject without copyright restrictions. Finally, the Copyright Council stated in its opinion, that copyright does not protect ideas, themes or principles. Therefore, two people can, for example, create a drawing based on the same subject, providing that they both treat the subject in a creative and original way.

As a work of fine art, the protection of a graphic work may be directed at the author's choices regarding colour, technique as well as any other choices, which contribute to the form of the work.  It is good to remember, that the result of a graphic designer's work may also be an ordinary book layout, advertisement, logo or other graphic representation, which does not meet the prerequisites of originality. 

As a part of  trade mark protection, it is also possible to protect a simple drawing, which is not in receipt of copyright protection.

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The logo of Soikeapallo game, which was not protected by copyright by Copyright Council 2000:1 

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Joint Work and Collective Work

​A joint work is a work created by two or more authors, whose joint contributions do not constitute several independent works. If the authors' contributions can be separated from each other, the work is not a joint work but a collective work. An example of a collective work is a book, which includes text by a writer and illustration by an illustrator.  In the Turku Court of Appeal ruling of 2nd August, 1995, plans by A and drawings by B, which were both part of a set of overhead projector transparencies, were deemed to have been created in such collaboration that A and B received joint copyright to them.

​Online Graphics
 

Works receive the same kind of copyright protection online as those which are published in analogue form. The concept of a web page is therefore not legally relevant; rather, it is the work that manifests itself in the form of a web page or single copy, such as a photograph, that is being examined.

In talking about online design, one can mean the visual expression in web pages or their technical design. Copyright issues relating to user interfaces and networks are discussed in the chapter Computer applications and games.

In this context, the phrase online graphics is taken to mean the result of visual design. Online graphics are usually created to enliven, clarify and visualise a web page. Online graphic design focuses on the creation and manipulation of various elements - text, images, buttons, animation etc. - in digital form using a computer.  Online graphic design may utilise technology based on vector or bitmap graphics.  In creating online graphics, the author may e.g. utilise computer animation, where moving images can be created entirely within the computer. Computer animation combines traditional animation and computer graphics.  Also, the animation may initially have been created traditionally, by pencil and paper, but e.g. colouring and motion may have been created with the help of a computer application. Sound may also have been combined with the graphics.

In terms of the copyright of online graphics, it is not significant what technology was used by the author in creating the work. The most important thing, as far as the attainment of copyright protection is concerned, is that the result of the intellectual creative work is independent and original and that it therefore meets the prerequisites of originality. Copyright protection is granted only to that form of appearance or expression, to  which the author has contributed by their intellectual creative work.

The visual expression of a user interface means the part of a computer application, which the user can see on a computer display, and the way in which they operate the application. Functionality is always a part of the user interface. Modern web browsers facilitate the realisation of diverse and interactive user interfaces. The graphical user interface means a way of using a computer or computer-guided device based on text, images and a variety of graphical user interface elements such as windows, menus, buttons and icons.  The user interface facilitates a dialogue between the user and the computer. In addition to the keyboard, interface elements are used by a pointing device such as a mouse or touch pad. The user navigates the user interface, functioning almost as a map, depicting how an application's functions are divided into windows, views and dialogue boxes and how information, operations and choices can be made. Menus and command buttons are kinds of direction signs, with which the user can reach the required information and operations. 

The graphical form of online graphics and a user interface may receive copyright protection as a literary or other artistic work, or other work, provided that it is independent and original and meets the prerequisites of originality. Copyright protection is granted only to that form of appearance or expression, to  which the author has contributed by their intellectual creative work.  It is not significant, how much creative work or professional ability the author invested in the work. In terms of meeting the prerequisites of originality, it is not significant, whether the work is characterised as static or interactive.  Any alterations made by the user do not, in principal, remove the right of the original author to their work. Terms and conditions may also have been agreed upon separately.

The graphical external form of a user interface and online graphics may have been assembled from such elements, that can be regarded as independent types of work on their own, such as photographic works, ordinary photographs, illustrations, maps, slogans and texts, used fonts and typography, each of which may independently receive copyright protection. In this case, the prerequisites for protection must be assessed separately for each element.

The texts "Get product" and "Get products" were not literary works in accordance with the Copyright Act. In the Copyright Council's opinion 2004:10, it was stated: The graphic design consists of two rectangular 'boxes', one of which has written in it, in white  letters, 'get product' and the other, in similar fashion, 'get products'. The base colour of the boxes is green. The boxes have most likely been created using a computer technology. The boxes create a kind of three-dimensional impression of depth. The Copyright Council notes that the texts contained in the graphic design, "Get product" and "Get products", do not meet the prerequisites of a literary work. Therefore the aforementioned texts, which are included in the graphic design, fall outside copyright protection, as defined in Section 1 of the Copyright Act. The Copyright Council considers that the aforementioned graphic design, as a whole, does also not meet the prerequisites of a work of fine art, or other work, in accordance with Section 1 of the Copyright Act. Therefore, according to the Council's view, the online graphic design intended in the request for comment falls outside copyright protection as defined in Section 1 of the Act.

As far as works of fine art are concerned, copyright protection concerns colour, technique as well as other choices. A photograph  may receive protection as a photographic work or as a so-called ordinary photograph. As far as user interfaces and the elements and layout of online graphic design are concerned, the prerequisites of originality may be high, in practice, as the purpose of the elements and layout is often clarity and user-friendliness, where the figures and symbols being used are those of universally used, and easily recognisable symbols. The assessment of the prerequisites of copyright protection, that is, independence and originality, should however be done on a case-by-case basis.

Image processing

Image processing is the manipulation or adjustment of image files using an image processing application so, that the pixels or vectors in the image file are manipulated. The image manipulation done with the most common image manipulation applications involve the adjustment of contrast, colour saturation and balance. Other common operations include, among others, resizing images, cropping, tilting and skewing, as well as image sharpening or blur.  Additionally, various effects may be added to the images, such as 3D, lighting, or camera lens effects. The applications' same operations can also be applied to the production of text and its visual appearance. The effects may also be in motion i.e. animated. It is possible, using image processing applications, to create very skilled image manipulations, where the link to the original source is no longer detectable with the naked eye.

If the intention is to use an already existing work created by another, e.g. by downloading an image from the internet, such downloading, unless for private use, is an infringement of the author's copyright without their consent. Using the work as a starting point for a new, independent and original work, is permitted, however downloading the original work requires permission. Use of works can also be monitored by metadata included in a work and the deletion of such data from a work or photograph is an infringement of the Copyright Act. The terms of use of image banks show under which conditions their images may be used. The Creative Commons community also has an image bank, whose image licenses may be used without charge.

It is however important to keep in mind that computer networks include a lot of material that has been put online without the permission of the author i.e. by violating the copyright. One is not allowed to further this copyright violation i.e. a permission for use of the material must always be acquired from the work's author or other rights holder.

If you have adapted, or intend to adapt, a work by another author and this adaptation lacks originality, then the author of the original work has the added right to control the work's adaptation as this is considered reproduction. In this case, you must always request permission from the original author or the person, to whom they have transferred their right.

It is possible to utilise ideas from previous works, as these don't fall under copyright. In creating a completely new and independent work, whose materials or starting point are derived from an existing work, the new work is not necessarily identifiable or confused with the original work. It is clear that no-one creates a work in complete isolation from the world surrounding them, rather that authors are influenced by each other. It is impossible to set universal rules about where the line should be drawn between free creation and adaptation that lacks originality and requires permission. The decision must be made on a case-by-case basis.

Photographs, appearing on a network and server, which do not meet the prerequisite of originality, are protected in accordance with Section 49 of the Copyright Act as so-called ordinary photographs. The basis for this is that a photograph is always protected and that permission from the author, or rights holder, is always required, if the period of protection for the work is valid.  Film works and individual images from other film material are also protected, either as ordinary photographs or photographic works.

Layout

Copyright protection requires the creative contribution of an author. Layout is the result and external appearance of visual composition. In order to receive copyright protection, layout must meet the prerequisites of originality i.e. it must be independent and original. Originality and independence require the versatile and original use of layout elements, such as images, texts, drawings, colour and typography, as visual elements.  The layout must reflect personal creative work in such a way, that no other person, when undertaking the task, would end up with the same end result. The layout artist may work solely based on the instructions given by their client or employer, mechanically carrying out the work using a layout application. In this case, for the layout to receive copyright protection, the layout artist must with their intellectual contribution demonstrate independence and originality. If this does not happen, the layout will remain outside copyright protection.

Even if the layout does not receive copyright protection, the materials used in the layout by the layout artist, such as photographs and other literary or fine art works, may receive protection. The right to these works remains with the works' right holders, and their use requires permission. The bigger the layout artist's independent and creative contribution is in comparison to the use, technical organisation and joining of existing material, the more likely it is for the layout to meet the originality requirements.

The legislator has set the design right and trade mark protection as the primary forms of protection for works of applied art. Partly for this reason, the prerequisites of originality for applied art are, in principle, higher than for so-called fine art. For example, a drawing that fails to receive copyright protection may be registered or established as a trade mark. It is, however, good to keep in mind that the protection afforded by the Copyright Act and the Trade Marks Act are not mutually exclusive. If a work that is copyright protected is to be registered e.g. as part of a company's trade mark, written consent must be obtained from the author.

Trade marks, symbols and logos (hereafter, the trade mark) can be limited in expression. The Copyright Council has, in its opinion, considered that the trade mark does not often meet the prerequisites of originality. In its opinion 2006:18, the Copyright Council considered the copyright protection of a certain logo: "The logo consists of geometrical patterns that have been shaped so as to imitate the aforementioned letters. NN's logo is not, in the opinion of the Copyright Council, original and independent in such a way that it could be afforded protection in accordance with Section 1 of the Copyright Act." It is noteworthy, that the copyright originality requirement does not affect the logo's value under the Trade Marks Act. 

Therefore, trade marks may also be copyright protected. In such cases, however, trade marks are required to exhibit a high degree of originality, particularly when their elements include the circle, square, triangles, large letters etc. It is worth getting trade mark protection for your trade mark.

The relationship of copyright to industrial property rights

​The legislator has set the design right and trade mark protection as the primary forms of protection for works of applied art. Partly for this reason, the prerequisites of originality for applied art are, in principle, higher than for so-called fine art. For example, a drawing that fails to receive copyright protection may be registered or established as a trade mark. It is, however, good to keep in mind that the protection afforded by the Copyright Act and the Trade Marks Act are not mutually exclusive. If a work that is copyright protected is to be registered e.g. as part of a company's trade mark, written consent must be obtained from the author.

Trade marks, symbols and logos (hereafter, the trade mark) can be limited in expression. The Copyright Council has, in its opinion, considered that the trade mark does not often meet the prerequisites of originality. In its opinion 2006:18, the Copyright Council considered the copyright protection of a certain logo: "The logo consists of geometrical patterns that have been shaped so as to imitate the aforementioned letters. NN's logo is not, in the opinion of the Copyright Council, original and independent in such a way that it could be afforded protection in accordance with Section 1 of the Copyright Act." It is noteworthy, that the copyright originality requirement does not affect the logo's value under the Trade Marks Act. 

Therefore, trade marks may also be copyright protected. In such cases, however, trade marks are required to exhibit a high degree of originality, particularly when their elements include the circle, square, triangles, large letters etc. It is worth getting trade mark protection for your trade mark.

Publishing contracts

There is a group of provisions to publishing contracts in Chapter 3 of the Copyright Act. As a rule, a publishing contract transfers to a publisher the exclusive right to publish and disseminate a work i.e. the rights to reproduce and make available to the public. The Act's provisions on publishing contracts will be applied, if nothing else is agreed upon by agreement.

Provisional restrictions of copyright protection

The Copyright Act has, for social and cultural reasons, restricted copyright in favour of the freedom of speech and communication. The restrictions in the Copyright Act have been defined in Chapter 2 of the Copyright Act. The following delineates some of the central restrictions from the point of view of graphic design.

The right to quote and the secondary reproduction of works of fine art

Reporting current affairs in a newspaper of magazine.

When covering current affairs for a newspaper or magazine (Section 25 of the Copyright Act), images of a work of art may be connected with a text, provided that the work has not been created for reproduction in the newspaper of magazine. The current affair mentioned in the provision does not have to be within the field of art.  The provisional restriction applies to both traditional journals printed on paper, as well as their online publications.  The provision requires, in any case, a connection between the image and text. The basis for the provisional restriction is the need and duty of the press to report on current affairs.

Using a work of fine art in exhibition or sales communication

A work of art, which belongs to a collection or is displayed in public, or is  offered for sale, may be photographed for a catalogue or other communication relating to an exhibition or sale (Section 25a of the Copyright Act). This provision does not restrict the technologies used for the reproduction, therefore also digital use is permitted. Use of an image in a exhibition or sales communication requires that the work is actually offered for sale or exhibited and that its use actually relates to the communication of the exhibition or sale. A work can also not be used in promoting the art dealer or other company after a sale has taken place. Commercial use for purposes other than advertising an exhibition or sale is not permitted.

Exhibition catalogues are taken to mean works that help to guide the people who come to see the works.  The collection or exhibition catalogue may be created without the permission of, or compensation to, the artist, in the case of an analogue method of reproduction i.e. a catalogue printed traditionally on paper.  Permission is required for a digital catalogue.

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Case 1
"What different forms of intellectual property protection can apply to a building created by an architect?"

A building may, depending on the situation, be subject to different forms of protection. Of the forms of protection for intellectual property, copyright is the only one that can concern a building without registration. A building may be protected by copyright, if it can be regarded as an architectural work in accordance with Section 1 of the Copyright Act. i.e. the result of the architect's independent and original intellectual creative work. Thus, copyright protects the artistic form of a building. On the other hand, the new and unique form of a building may also be design protected. Insofar as the building contains novel and inventive elements or parts, the protection of a patent or a utility model protection may be sought. It is noteworthy, however, that patent, design or utility model protection should be applied for prior to the publication of an object.

Case 2
"You have acquired an old café building in the centre of Helsinki. As the owner of the building, you would like to change the interior. Is this possible, and under what conditions?"

It depends on whether the building's copyright extends to its interior. In accordance with the Copyright Act, architectural products are considered artistic creations, which may include entire buildings as well as their artistically designed elements, such as the interior design. If the interior design receives copyright protection, it can generally only be modified with the consent of the author. Chapter 2 of the Copyright Act, however, includes an exception to this rule favouring the building owner. According to this, the owner has the right to change the interior, if reasons of technicality or convenience require it. Naturally, if the interior is excluded from copyright, the building owner can change it as they wish.

Case 3
"A newspaper article includes an image of a company's website, the graphics of which you have designed.  Is the newspaper violating your copyright?"

Graphics, also, can be protected as a work, as intended in Section 1 of the Copyright Act, in which case the author is protected by the moral and economic rights mentioned in Sections 2 and 3 of the Copyright Act. However, certain restrictions in favour of the press have been made to the author's exclusive rights. In accordance with the Copyright Act, images from a published work may be used in connection with the text of a newspaper or magazine, when covering current events. The image is required, however, to have a connection to a current event. A work cannot be depicted simply as a part of the editorial composition.

Case 4
"Prerequisites of originality for applied art?"

In legal practice, the originality requirement of so-called applied art has been kept high. This has been justified by the fact that products of applied art are affected not only by the author's creative input, but also matters regarding the intended use of the product. If the intended use dictates the product's final result to a large extent, the product is generally not considered to have met the prerequisites of originality. The assessment of applied art is principally the same as for other works. The work must meet the requirements of independence and originality. The decisive factor is whether any person can reach the same conclusion from the same starting point. In legal practice, the prerequisites of originality are considered to have been met, for example, when the relationship of intended to the end result is remote (TN 2006:19 and 2010:15). 

Case 5
"A design can also be protected by a design right the copyright in a design right in addition to a copyright. What are the starting points for this?"

The object of a design right is the form of a product or part of it. In principle, the object of the protection must be a concrete, physical product. For example, liquid materials and ideas are excluded from protection. However, design protection can also be granted to interfaces and icons. Design protection is sought from the National Board of Patents and Registration of Finland (PRH), or the EU's OHIM agency, in which case the registration is valid for 5 years and may be renewed four times (for a total period of protection of 20 years from the application). A prerequisite for registration is novelty and individuality. A similar design may not have been received prior to the date of application. In accordance with the provision on the exceptional grace period, a design can be used for a year prior to registration without losing the novelty. Individuality means that the overall impression of the design must differ sufficiently from the overall impression of already available designs. The design right holder is granted an exclusive right to exploit the design in countries where the design right has been registered.