AJPark

Coming up with a new brand is a fun exercise.  Often a logo or some sort of graphic is used to complete the brand story.  But using graphics can introduce some copyright issues.  After all, you want to own all the elements that make up your brand. not just part of it! 

Here are some traps to avoid when dealing with brands, labels, logos and other marketing collateral.

Copyright is automatic—but who owns what?

If your brand includes a graphic like a logo or label—irrespective of artistic quality or merit—copyright will exist as it is considered to be an ‘artistic work’.  Copyright exists automatically on the creation of an ‘original’ drawing.  A drawing that consists of a combination of parts drawn from different sources may also qualify as original (but it would pay to get advice on this).

When it comes to the written word, in general, there is no copyright in a single word or a short phrase, no matter how unique the word or phrase is.  The word or phrase may however be protected by way of trade mark registration.

What are the rules about ‘commissioning’?

Drawings in the form of logos and labels are usually created by a graphic design, advertising or marketing company.

The Copyright Act 1994 states that where ‘artistic works’ are made under commission, and the commissioner pays or agrees to pay for the work, the copyright will belong to that person (ie, the person who commissioned the work). This is the situation in New Zealand, but not necessarily so overseas.  For the sake of certainty as to ownership of copyright, we would recommend that any arrangement entered into be set out in writing.

But not all logos and labels are created by professionals—sometimes the graphic in a brand is drawn by friends, family or acquaintances.  They may be particularly good at drawing or undertaking study as a graphic designer and they offer to create it for you.  You did not commission them.  And there is usually no mention of money.   This is where a lot of problems occur.  Under the Copyright Act 1994, the creator of the graphic would be owner.  If you want ownership (and we suggest that you do) then the copyright would need to be transferred to you in writing.

Copyright ownership can be difficult to prove

There is no formal register of copyright works.  In a dispute, you may need to prove ownership or originality of work.  This is a matter of evidence.  As copyright exists in the original drawings of your logo or label, it is important to keep the original and all revisions of the drawings. Many do not.  Without this evidence, it can be very difficult to prove that your graphic was originally created or that you do in fact own it.

It is also important to record the date your graphic was created and who by. 

Copyright is infringed where the work or a substantial part of it is copied.  There must be a link between the original work and the infringing work. 

Independent creation is not an infringement no matter how similar the two works may be.

How to stake your claim to copyright

You can showcase your claim to copyright by including an appropriate notice in your marketing collateral.  The usual copyright notice is ©, followed by the name of the copyright owner and the year of first publication.  An example would be © A J Park 2010.  As copyright exists automatically, and there is no formal registering process (unlike trade marks), you should use the copyright notice as soon as the work is created.

If you are using your copyright work in your brand, and you have registered your brand as a trade mark it is also useful to include a copyright notice, as well as the trade mark status indicators of ™ or ®.  Adding the copyright notice shows that copyright is claimed and this may defeat an infringer’s plea of ignorance in any disputes.

Make sure you own all copyright associated with your logo, labels, trade marks and other branding elements.  A simple agreement up-front can save a lot of downstream angst.

An edited version of this article was published in Her magazine, May 2010

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  Corinne Blumsky

  Partner