Design on Someone Else's Dime: the Profiteering of Interior Designer's Works from a Lack of Rights in the Modern Era

• Publication year: 2021

Design on Someone Else's Dime: The Profiteering of Interior Designer's Works from a Lack of Rights in the Modern Era

Kim Carlson

University of Georgia School of Law

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DESIGN ON SOMEONE ELSE'S DIME: THE PROFITEERING OF INTERIOR DESIGNER'S WORKS FROM A LACK OF RIGHTS IN THE MODERN ERA

Kim Carlson^*

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Table of Contents

I. INTRODUCTION ......................................................................................................399

II. Background........................................................................................................399

A. Development of Interior Design: From Patrons to the Age of Social Media.......................................................................399
B. Trademark Protection for Interior Designs...................403
C. Copyright Protections for Designs......................................404

III. Analysis..............................................................................................................406

A. Foreign Comparison: Protections Already Established for Interior Designers......................................406
B. Impact of Extending or Amending Protection Under Trademark or Copyright Laws...................................408
C. Shortcoming of Rights in Trademark and Copyright...........................................................................................409
D. Future Action: Looking Beyond the Law...........................410

IV. Conclusion..................................................................................................411

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I. Introduction

Mid-Century Modern, Farmhouse, Traditional, Boho-Chic. These terms regularly appear across social media platforms as search terms and hashtags for home design. simultaneously, the interior design industry experienced a rapid expansion following home and do-it-yourself design shows, growing to "a nearly $10 billion business."¹ Moreover, the use of social media accounts significantly changed how interior designers advertise and publicize their services.² In recognition of the rise of popularity, companies seized new opportunities to collaborate with interior designers in creating product lines. These collaborations offer a valuable source of information for the public or potential clients to learn about an interior designer's style and service. However, other participants saw this development as a way to exploit these works either through imitation or by claiming the work as their own.³

This leads to the question of whether interior designers should have intellectual property protection, particularly, under trademark or copyright laws. This Note analyzes the dangers and challenges interior designers may face to protect their works if intellectual property laws remain as they currently stand. The background section of this Note summarizes the history of interior designers, the development of trade dress protection in trademark law, and the registration requirements for compilations in copyright law. This Note then reviews the trend to protect interior design spaces in other countries and whether alternative avenues can afford similar or better protection. Ultimately, this Note concludes that spaces created by interior designers should receive intellectual property protection.

II. Background

A. DEVELOPMENT OF INTERIOR DESIGN: FROM PATRONS TO THE AGE OF SOCIAL MEDIA

Interior design combines aesthetic elements within an interior space to ultimately enhance the human experience and comply with regulatory codes and

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regulations.⁴ At its core, interior design is an act of livable art.⁵ Although there is no federal law mandating a license, many states offer certifications.⁶ In some states, having a license allows interior designers to sign approve of permits or construction documents for nonstructrial interior work.⁷ Multiple states require a combination of education, experience, and passing the National Council for Interior Design Qualification ("NCIDQ") exam.⁸ A handful of states go further by requiring registration to qualify as a certified interior designer.⁹ A certification infers "knowledge and experience to build a space that's code compliant."¹⁰ Although states offer voluntary registration, advocates argue that further regulations should be established, especially for commercial spaces where safety codes are involved.¹¹ Interior design services thus involve a higher degree of skills and knowledge likened to other skill-based industries that do not require certification.

The interior design industry has a long-standing establishment dating back centuries.¹² During the seventeenth century, patrons played a prominent role in the development of interior design.¹³ Notably, the work commissioned by the French aristocracy began to influence other European nations.¹⁴ In more recent history, the interior design industry radically changed.¹⁵ Once reserved for creative amateurs, interior designers now must balance creativity with technical knowledge.¹⁶ A driving force behind these changes began with the creation of home design and do-it-yourself television shows.¹⁷ Clients began to require more

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dramatic risks or edgier design concepts to capitalize on eye-catching advertising or personalize a cookie-cutter home.¹⁸ Particularly, since the launch of the Home and Garden Television, viewership has exploded, earning an average of 1.6 million viewers.¹⁹ Interior designers benefitted from these shows by bringing awareness to this industry never seen before and invigorating consumers to create beautiful interior spaces.²⁰ Further, homeowners are spending, on average, more on home improvement projects.²¹ Today, the demand from interior designers to create spaces for homeowners and commercial owners are at the highest levels they have ever been.²²

Another striking change in the interior design industry is the choice and common practice to display and advertise these works. The creation of digital platforms significantly changed the way interior designers offer their services.²³ Digital interior design services can provide greater accessibility to a broader audience.²⁴ Once a luxury expense for the wealthy, these services can be available at a more affordable cost to a larger audience.²⁵ Shanna Tellerman, the chief executive of Modsey, describes that "[f]or designers, [this] opens up the idea that they can have clients anywhere."²⁶ Combined with the use of social media platforms, interior designers can now showcase their projects, becoming, for many, their portfolios.²⁷ With such widespread accessibility of interior designers works, clients are looking for novel designs, demanding interior designers to push the boundaries to create unique, one-of-kind works.²⁸ These bold designs create a new avenue for interior designers to generate business. One designer noted that approximately forty percent of her business originates from her social

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media account because of her posts on social media.²⁹ Publicizing through social media accounts can, however, can, and did, result in disadvantages. For example, sharing photos of interior spaces on social media platforms led to uncredited shares and plagiarism by hospitality venues.³⁰

In the past few years, designers continue to find new ways to establish their brand recognition. The most recent approach is through collaborations with retailers by creating furniture and home décor lines.³¹ Developing product lines reflecting their design styles allows interior designers to utilize "their [own] unique creative vision" in the marketplace.³² Social media platforms and collaborations help strengthen the possibility for interior designers to advertise their services.³³ The heightened coverage, however, can create a higher risk of exposure to plagiarism.³⁴ In one case, Home Depot created computer renderings from an interior designer's images, without receiving permission, for advertising purposes.³⁵ With the expansion to invest in interior design spaces and the evolution from traditional print media to social media, interior designers have had to modify their advertising techniques to compete in a competitive industry and simultaneously protect their work from plagiarism by other designers or companies.³⁶

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B. TRADEMARK PROTECTION FOR INTERIOR DESIGNS

Trademarks allow merchants to identify and differentiate their products or services through the use of any words, symbols, devices, or a combination.³⁷ A foundational principle of trademark rights is that the rights are created from use, not from registration.³⁸ The Lanham Trademark Act upholds this by furnishing a cause of action for parties with unregistered trademarks if the second user's goods or services, in connection with "any word, term, name, symbol, or device", would likely be confused with the original user's goods or service.³⁹ The Lanham Act affords parties the ability to bring a trademark infringement suit under the notion of unfair competition even when the mark itself cannot be registered.⁴⁰

Although trademark rights have not been outright granted to interior design works, courts have extended protection to colors, restaurant designs, and retail stores under the trade dress doctrine.⁴¹ Trade dress refers to a mark's overall appearance of a product or service, including the shape, color, and product packaging.⁴² To bring a trade dress infringement case, the plaintiff must show: the mark is distinctive or acquired secondary meaning, the mark is nonfunctional, and there is a likelihood of confusion between its product or service and the infringing defendant.⁴³ The supreme Court stated one of the purposes of the trade dress doctrine and generally, trademark law, was to give merchants the ability "to secure . . . the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers."⁴⁴

Courts do, however, impose limitations on how far trade dress protections extend. When a product's or...