This post was prompted by the article Color: The Next Limited Resource? at Six Revisions. The article is pretty much chock full of misinformation (though well intentioned).
To point out a few things:
- The article confuses copyright and trademark. Common mistake, but worth mentioning. You can’t copyright a color- if you could, every color would already be copyrighted by painters, photographers, etc. since copyright does not to have to be applied for. Whether you can trademark or patent a color… well, you can patent a process for making a color, and you can trademark the use of a color in a certain context. But I have yet to see a trademark on just a color, with no other design elements. (Please correct me if I’ve missed one).
- “Every color you have ever seen used has been indexed and named by Pantone.” The human eye can perceive a lot of different shades and colors. Most estimates put it in the millions, though it depends on how good your color perception is. Furthermore, just because Pantone has named colors, it does not mean it owns them. What they own is a trademark on certain designations (numbers) associated with certain colors. You can still use any of the Pantone colors, you just can’t distribute a list of Pantone colors + designations. So their business doesn’t have a whole lot to do with what colors you can use.
- Brands have been trademarking color for a long time. This is nothing new.
- TMobile did not “[sue] companies like a book-on-demand publisher, and most recently, in the blog Engadget Mobile” as stated in the article. As can be easily determined from the article’s links, both companies got a Cease and Desist letter. This is miles away from a lawsuit. Even if they did sue, the lawsuit would hinge on a lot of things, not just color. Is the company selling a similar product? Does the logo look similar? Is the accused infringer even in the same business?
Anyway, a glance at the comments is enough to tell me that people are taking stuff like this seriously.
Don’t get me wrong. I think our copyright system is broken. But if we jump at every little thing, we’ll miss the really big stuff.
The truth is, if you create anything today, you are at a risk of being sued. It’s probably going to be unusual to go through a creative career without at least one C&D letter to your name soon. People have simply done so much that the chances of your doing something truly original are reaching nil. That doesn’t mean we should stop creating. It means we should arm ourselves, know our rights, and fight for change where necessary.
It also means that, as designers, we should try to avoid becoming the assholes misguided companies we decry in our inflammatory articles. Don’t make “I should sue” jokes. Don’t think about suing when you see designs vaguely similar to yours. Don’t look to lawsuits as a potential future cash cow. Remember that creativity is built on other creative works. That’s not to say you shouldn’t stand up for yourself if someone out and out steals your work, but don’t jump to conclusions, either.
Bonus points: Release some of your work under a creative commons license. 
