By Client Legal Director, Charlie Strickland
What is copyright?
As suggested by its name, copyright is the right to stop someone else copying your original work, using it in a performance or adapting it. It can apply to paintings, books, songs and sculptures but also to software, website designs and developments, or even databases.
To be protected under copyright, the work must be original – the author’s “own intellectual creation”. In the UK, this is an automatic right which generally lasts for 70 years after the death of the owner, though different types of copyright carry different time limits.
Because of this automatic right, however, it is not unusual for businesses to make assumptions about ownership that are incorrect and mean that their valuable intellectual property assets are not protected. So, in this blog, I’ll give you some information about best practice and some considerations to make to ensure that you are looking after your intellectual property and maximising its value.
Potential pitfalls
Not owning your own brand
Many people assume that when they pay for something, or commission works from an external party, they own the copyright outright. This is not the case. Unless agreed otherwise, ownership stays with the creator and not the commissioner. Pay particular attention if you are bringing in an external company to design or redesign your website or logo as these will not automatically be yours. Note, that an employee’s work, done in the course of their employment, will be caught and therefore does not have the same issues.
Not owning your brand has many ramifications. If you don’t own it, you won’t be able to sell it. And you won’t be able to enforce it. There will be no data attributing the creation to you, so you won’t be able to prove you were the first to come up with it. You won’t be able to exploit the right though licensing or claim it as a value to a potential investor. Ostensibly, it could become worthless.
Choosing joint ownership
What may seem like an easy compromise at the outset, can lead to significant issues down the line. As joint owners, both parties can do with it what they like, effectively meaning you can quickly lose control of the direction of your brand if the other owner as a different vision.
Though it may necessitate some difficult conversations, it is important to clarify ownership from the outset and formalise this in writing, to avoid potential disputes going forward.
What should you do?
The earlier you establish ownership and copyright, the better, preferably when the brand has little or no value to anyone but you. If your brand or mark subsequently takes off, the negotiation will become a great deal harder and more expensive to rectify.
Keep good records. Though not a requirement, it’s best practice to mark your copyrightable material with © alongside the owner’s name and the date of creation.
If you are commissioning work from an external party, make sure that you have it in writing that the copyright transfers to you. Bring in specialist help if you would like support with this. Investing in getting it right at this stage will prevent more costly issues arising in the future.
Whist not essential in the UK (it is in the US if you want to bring a claim), I recommend registering your key trade marks. Registration gives a formal level of protection and ensures a level of diligence has been completed prior to the registration being accepted. This will give confidence to any potential investors and, with a registered right, will put you in the best position to protect your mark should the need arise.
How can TLD help?
As your in-house IP lawyer, we can help you identify and protect your portfolio of Intellectual Property assets from inception and provide support and framework for its growth. We can conduct an audit and advise on a strategic IP plan of creation, protection, and registrations, making the most of your IP investment as you grow.
We can review your contracts for all types of personnel and contractors and ensure that the copyright you own is clearly marked as such, protecting you against losing valuable Intellectual Property Rights if an employee or director leaves.
If external specialists are required, such as accountants, trade mark or patent agents, we can source and manage these resources on your behalf, effectively acting as your IP consultant. We can also provide advice on how to defend against infringements.
If you would like to explore your options in more detail, please get in touch on 020 3056 8538 or info@thelegaldirector.co.uk.
