There is much confusion regarding copyright and moral rights. I cannot state clearly enough the importance of understanding who owns the copyright and moral rights and, when it comes to logo design, how copyright ownership can impact trade mark registration.
This blog is my attempt to simplify and clarify how the different elements of design (graphic design, copy-writing, photography and illustration) relate to copyright ownership. The most straightforward statement I can make is…
PAYING A DESIGNER, ILLUSTRATOR, PHOTOGRAPHER AND/OR COPYWRITER TO CREATE A PROJECT, OR ELEMENTS OF A PROJECT, ON YOUR BEHALF DOES NOT MEAN YOU OWN THE COPYRIGHT.
Below is a general, simplified overview of copyright and moral rights in Australia for my clients. It is not an authoritative statement. The law is subject to change. When it comes to Intellectual Property and Trade Mark registration, I recommend that you seek guidance from a registered IP professional. Clients, please refer to Stubborn Creative (previously known as McCoy Design) Terms of Trade and Service for further reference.
A. DESIGN/LAYOUT Copyright remains with the original creator/designer unless copyright ownership has been officially ‘assigned’ to someone else. Included content such as logos, photography, illustrations and copy-writing, still remain the copyrighted property of the original creator/designer of those individual elements unless formerly ‘assigned’, in-writing to someone else. You must have written permission to include such elements.
B. THE LOGO Copyright remains with the original creator/designer of the logo unless copyright ownership has been formerly ‘assigned’, in writing, to someone else. You must have written permission to include such elements. At McCoy Design, I provide my clients with an official transfer of copyright ownership assignment form upon completion and payment of the final approved logo.
C. BRAND STATEMENTS/SLOGANS Copyright remains with the original author unless copyright ownership has been formerly ‘assigned’, in writing, to someone else. Such an element may also be covered by an IP trademark registration. You must have written permission to include such elements.
D. PHOTOGRAPHY A COMMON MISTAKE: CLIENTS FREQUENTLY THINK THEY OWN THE COPYRIGHT TO PHOTOS THAT THEY HAVE COMMISSIONED BECAUSE THEY PAID FOR THEM – they do not. Copyright remains with the photographer unless copyright ownership has been formerly ‘assigned’, in writing, to someone else. You must have permission to include copyrighted photography. A PROFESSIONAL PHOTOGRAPHER USUALLY ONLY EXTENDS A LICENSE OF RIGHTS TO USE THE IMAGES FOR THE EXACT PURPOSE FOR WHICH THE PHOTOGRAPHY WAS ORIGINALLY COMMISSIONED AND PAID FOR. Ditto any talent (model)/agency fees. They have the right to charge additional fees if the images are used outside of the scope of the original brief. It is very important to clarify this before the photo-shoot (or before using the images). NOTE: Beware of photographing copyrighted/IP registered products without written permission too!
E. COPY-WRITING/TEXT If you appoint someone to write text/copy on behalf of you/your company, copyright remains with the author unless copyright ownership has been formerly ‘assigned’, in writing.
F. FONTS/TYPEFACES Fonts/Typefaces are subject to copyright. In general, unless the font is officially specified as ‘open-source’, a commercial usage license must be purchased. Fonts cannot be transferred or distributed; each user must obtain a license. Some offer ‘multiple seat’ licences (within one organisation). Licenses vary. Some fonts can not be used in logos that will be registered trade-marks.
G. ILLUSTRATIONS Copyright ownership remains with the original creator/designer of the artwork/illustration unless copyright ownership has been formerly ‘assigned’, in writing, to someone else. You must have permission to include such copyrighted elements.
HOW LONG DOES COPYRIGHT LAST?
Copyright protection continues for 70 years after from the author/creator’s death.
MATERIALS SUPPLIED BY A CLIENT, FROM ANOTHER/PREVIOUS DESIGNER
To use any other designer’s work, the client must have legal documentation proving that the original designer has transferred ownership to the client. Verbal confirmation is not acceptable; written ‘assignment’ is compulsory under copyright law.
“IT’S OK, MY EMPLOYEE DID IT!” NOT NECESSARILY!
As a general rule, an employer will own the intellectual property created by its employees in the course of their employment. However, intellectual property that is created by an employee, other than in the course of employment, is owned by the employee, not the employer. MORE: business.qld.gov.au/business/support-tools-grants/tools/intellectual-property-info-kit/browse/employees-contractors/ownership
Moral Rights are personal legal rights belonging to the creators of copyright works. They cannot be transferred, assigned or sold; they are separate from copyright ownership. The creator of a work holds the moral rights but is not necessarily the copyright owner. With Moral Rights, creators have the right to be attributed /credited for their work; not to have their work falsely attributed; and not to have their work treated in a derogatory manner.
IP TRADE MARK REGISTRATION
Importantly, IP Trade Mark Registration is totally separate to ASIC Business Name/Company Registration.
Australian Trade Mark Registration is a legal process that grants exclusive rights to a particular sign, symbol, logo, word, phrase, or design used to distinguish goods or services in the marketplace. It provides protection against unauthorized use or imitation by others within Australia. While trade mark registration primarily focuses on safeguarding brand identity and preventing consumer confusion, it is distinct from copyright ownership. Copyright pertains to the exclusive rights granted to original artistic, literary, musical, or dramatic works. While both trade mark registration and copyright protection offer legal safeguards, they serve different purposes. Trade mark registration protects brand identity, whereas copyright ownership safeguards original creative works, such as books, music, paintings, or software, from unauthorized reproduction or distribution.
Registering a trademark does not indemnify the registrant from breach of copyright. You must have the copyright “re-assigned” in writing prior to registration.
DO TRADE MARK SEARCHES BEFORE REGISTERING A NAME OR PAYING FOR LOGO DESIGN
Doing registered trade mark searches prior to using a new business name or logo is of paramount importance. Trademarks are valuable assets that distinguish one business from another and help build brand recognition. Conducting a thorough trademark search ensures that the proposed name or logo does not infringe upon existing trademarks, thereby preventing legal disputes and potential financial liabilities. A comprehensive search involves examining registered trademarks in relevant jurisdictions, including local, national, and international databases. By conducting such searches, businesses can identify any conflicting trademarks and make informed decisions to avoid confusion among consumers. Additionally, a registered trademark search helps safeguard a company’s reputation and credibility by ensuring that its chosen name or logo is unique, distinct, and legally protectable. Ultimately, investing time and effort in conducting registered trademark searches before using a new business name or logo can save a company from future legal entanglements and safeguard its brand identity.
© Copyright 2015 Julie McCoy – all rights reserved.