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[stuartburgh]

I have a product that I would like to protect before I attempt to sell it but I'm receiving pressure back from my patent attorney who is insisting that it needs a copyright and not a patent.  It is very specific design and made of three parts welded together.  My patent attorney has directed me to secure a copyright for the design since its being sold as a piece of art or decoration which is true although it is a physical product which makes me disagree.  Can I protect a physical product design with a copyright?

Thanks,
Stu

[OMG IP]

you can protect the expression of the idea as reduced to a tangible medium.

In this regard, assum you have widget X.  Widget X has ornamental features that can be protected by, for example, a design patent.  The "design" of Widget X, such as blueprints, engineering schematics, drawings, pictures, etc., can be protected by copyright.  Thus, someone cannot copy your blueprints without persmission.  Or someone cannot publish the picture without permssion.

This is a very limited example.

When you say "phsyical product design" you kind of intermingle both of them, which doesn't leave a clear picture as to what you are saying.

[Kaitlin]

I had the impression from your previous post (under trademarks) that the design in question was not the design of the entire object, but rather a design (perhaps an etched pattern?) which was applied to the object.  But you seem to be saying it's the design of the entire object which is actually being sold as decorative art.  Is that correct?

In any event, if a design is susceptible of copyright, then as OMG points out, the creator of the design has a copyright in it from the moment the creation is "fixed in a tangible medium of expression"  -- e.g., words on paper, sound on CD, paint on canvas, etc., Brass formed and welded together, whatever.  So once the artistic idea is out of your head and into "tangible" form, you have a copyright, assuming it's the sort of creative expression that gets copyright protection.  (A simple generic triangle probably wouldn't, e.g.  A multiplicities of triangles arranged in an unusual total design would be another matter, however.)

Normal approach to copyright protection is to 1) put a copyright notice on the copyrighted picture or design ("Copyright [year] [name of copyright holder]") -- which can be done prior to registration -- and 2) to register the work with the copyright office.

General information on copyright can be found in the Copyright Office's brochure on Copyright Basics: http://www.copyright.gov/circs/circ01.pdf

[OMG IP]

based on the description in the OP, I would view a design patent as highly appropriate here.

An issued design patent will exlude others from making, using, selling, offering to sell, etc. the claimed invention, which for design, is typically whatever ornamental aspects are depicted in the drawings

[Oh, Crud]

based on the description in the OP, I would view a design patent as highly appropriate here.

Some thoughts.  One is, design patents expire in 14 years.  But copyright lasts until Sonny Bono's bones rot (whatever copyright term is up to these days, something like life of the artist plus 70 years, I think).

Second thing is, are these mutually exclusive?  I thought you could claim copyright (and/or register the work at the copyright office) and file a design patent application?

[OMG IP]

areas of law are often intertwined, and IP is no different.  One can certainly get a design patent and a copyright for the same "thing", keeping in mind that the scope of protection obtained for the "thing" will be different in each instance.

My previous comment was directed more to the OP, where it's conveyed that the OP's attorney is steering him away from a design patent.  Based on the OP, I am not sure why.  I do not know why an attorney would "pressure" a client to get a copyright, when a copyright exists automatically once an expressed idea is R2TM.  Maybe the OP meant copyright registration.  Not sure.  Certainly you can do both or more.

[Oh, Crud]

My previous comment was directed more to the OP, where it's conveyed that the OP's attorney is steering him away from a design patent.  Based on the OP, I am not sure why.  I do not know why an attorney would "pressure" a client to get a copyright, when a copyright exists automatically once an expressed idea is R2TM. 

Gotcha, thanks.  And following my earlier post I stumbled on the OP's previous question that was directed at the TM board.  In it he mentioned that his patent attorney mis-spoke, telling him he should trademark the design, when the attorney meant to have said, copyright it. 

What patent attorney would make a mistake like that??