AJPark

A logo is an important item of intellectual property that should be fully protected. Logos can consist of stylised wording, or may include graphical features and artwork.

It is usually best to enter into a written agreement with the designer of the logo that clearly records who owns the copyright.  If copyright ownership is unclear, then there could be serious, and expensive, consequences for protecting the logo, and producing copies of the logo.

What is copright?

Copyright is a type of property right that exists in addition to rights under a registered trade mark.  Contrary to popular belief, it does not protect an idea.  Instead, it protects the original expression of an idea.

Copyright comes into existence when an original work is created, such as an artistic work, like a logo.

Copyright is infringed by copying the whole, or a substantial part, of a copyright work.  Proving copyright infringement can be difficult and this is why it is best to own the registered trade mark and the copyright. 

Ownership of a logo as a registered trade mark gives you the exclusive right to use that logo for your products or services.  Ownership of the copyright in the logo gives you another string to your bow.  Depending on what the other party has copied, the strength of your case may depend on either trade marks or copyright, or both. 

Who owns copyright?

Determining who owns copyright in a logo is not always straightforward.

The author of a logo will sometimes be the copyright owner.  There are exceptions to this.  If the logo is created by an employee in the course of employment, the copyright will usually be owned by the employer.  If the logo is commissioned, the copyright will usually be owned by the person who commissioned the work.  These exceptions can be altered in writing.

The rules relating to commissioned copyright works is currently under review.  There is a proposal to abolish the commissioning rule so that the author of the copyright work will usually be the copyright owner.  If this proposal becomes law, it will be even more important for businesses and designers to establish copyright ownership from the outset.

Creating certainty

Businesses and logo designers should agree on copyright ownershipfrom the start.  Otherwise, it can be difficult to determine copyright ownership.  It is important to record the agreement in writing.

If the commissioning business is not the copyright owner, it may not be able to reproduce its logo unless it has the copyright owner’s permission.  Also, you will need to be the copyright owner to prevent another party using the work, or a work too similar.

If a business purchases a pre-existing graphic design, then the copyright will most likely be owned by the ‘author’ of that work.  If the purchasing business wants to be the copyright owner, then it can enter into a deed of assignment transferring copyright ownership.  A properly drafted deed of assignment will remove any confusion about who owns copyright.  The purchasing business should also obtain a written warranty from the designer, or artist, stating that the graphic design is original and has not been copied from another artistic work.

All drafts and revisions of the artistic work created during the development of the logo should be kept.  These works should be reliably dated, note who made revisions, and be kept in a safe place so that the copyright owner can prove when the works were created.

Copyright in Australia

New Zealanders can also protect their copyright in Australia, even if the copyright work was created in New Zealand.

However, it is even more important to establish certainty around copyright ownership in Australia. This is because the commissioning rule in Australia works slightly differently. The person who commissions the logo usually does not own the legal title to the copyright.

A written agreement is therefore very important to protect copyright in Australia.

Conclusion

The best way to determine copyright ownership is to consider the issue from the outset and then enter into a written agreement. If agreement is not reached between the parties from the start, then the parties should enter into an agreement as soon as possible to avoid legal problems.

An edited version of this article was published in Apparel, April 2009.