Protecting Shoe Designs

Dear Rich: I recently did some creative painting on high heel shoes and got a great response.  Suppose I create 12 individual painted designs and want to see if I get orders.  In order to preserve my designs what do I need to do?
If you're applying surface ornamentation to a shoe, (imagery like this, that is considered separable from the footwear) your best protection is probably copyright law because it's automatic and because you can stop others from reproducing the image on anything, not just shoes. You should register the work if you're concerned about it being ripped off because copyright registration provides some advantages in a lawsuit. You can register all your designs as a group but if one of your designs is more popular than the others, you should probably register it separately. You can find help online, and if you need more assistance, check out our book, The Craft Artists' Legal Guide.
Protecting the shoe's design. If you want to stop the specific use of your image in connection with shoes, (or for some reason you want to protect the design of the shoe itself -- the shape, proportions and "sculptural" elements), you might consider filing a design patent. Design patents protect shape, design and ornamentation for useful objects.  Companies with large design patent portfolios, such as Nike, successfully use design patents to stop others from making similar shoe designs. We discussed the differences between copyright and design patents in a recent post. The big difference is that design patents are more expensive and take longer to acquire.
PS Good news for those who can't find what they want at Zappos: design your own shoes.

Design Patent or Copyright? Which is Better for Jewelry?

Dear Rich: I design jewelry and a store in Chicago has placed a fairly large order (at least for me) for one of my items. I was thinking I should do something to protect the design. Should I file a copyright or a design patent? Short answer dept.: Copyright will probably work best for you. We discuss this issue in some detail in our crafts law book but we imagine you're too busy filling your order to read the details, so we'll summarize here. (BTW, we've also written about this subject here.)
What's the diff? The rights you get with a design patent are considered to be broader or more powerful than a copyright. That's because you don't need to prove that an infringer saw your work and copied it -- all that matters is the works are the same. But that advantage may prove more valuable for big companies with a lot of money to obtain the design patent and to enforce it. The design patent application and filing process can take a year or more and cost one-two thousand dollars. A copyright is automatic -- it exists once you create the work -- and registration, which provides benefits if you need to chase someone, typically takes three to six months and costs under $50. Copyright will last for your life plus 70 years; a design patent lasts for 14 years. In addition, there are many rules for design patents that could disqualify it as an option for you. For example, if your design has been offered for sale or images of it have been published more than a year ago (referred to as the one-year rule), you cannot now file for a design patent. Not all designs are protected under design patent law. The USPTO will not issue design patents for 'surface ornamentation' (i.e. two-dimensional illustrations such as drawings). So, if you're only decorating the surface of an object, you may not qualify. For all these reasons, we'd suggest passing on design patent protection.