As creators of visual material, designers and design companies have many potential intellectual property rights including:
- Copyright
- Database Rights
- Moral Rights
- Resale Royalties (for artworks)
- Rights over confidential information
- Design Rights
- Trade Mark Rights
To ensure that your intellectual property rights are fully protected and exploited and that you don’t breach the rights of others, you should be generally aware of the above aspects of intellectual property law.
Among the key intellectual property issues for design companies are;
Q: Do I need to register my copyright?
A. No, copyright is an automatic right. Registration is not needed for copyright ownership in the UK. However, in any dispute you will need to prove when you created your work.
Practical Steps: Always ensure that your work is properly dated and that there is independent evidence confirming when it was made, for example, digital photographs of your work with the date on or some people like to put a copy of their work in a sealed envelope posted to their home address. Also, always ensure that your work is properly credited with you as the author and the copyright owner. This is a useful warning to deter others from exploiting your work.
Q: I have been commissioned to create a work – who owns the copyright?
A. The general rule is that the copyright remains with the artist (even if the work has been sold) as the owner of copyright is the artist.
This is the case unless:
(i) the artist expressly agreed that the commissioner would own the copyright or
(ii) it can be implied from the circumstances that it was equitable for the commissioner to own the copyright (e.g. the work was created for a specific, commercial purpose).
Practical Steps: Always ensure you have a written agreement with the commissioner, stating that you (the artist) retain copyright. The agreement should set out a licence for the commissioner to use your copyright in circumstances specified by you (e.g., price, range of uses). A clear, written licence can ensure that the commissioner is unable to exploit your work where you would not intend.
Q: I have been asked to transfer my copyright in a contract commissioning me to produce a work – what should I do?
A. Copyright is a potentially valuable property right that can be both fully transferred and licensed. It lasts your full lifetime plus 70 years. Be cautious about giving this right away, unless you feel sure that you will be properly compensated.
Practical Steps: It is advisable to grant licences to the client. Licences can be limited both in terms of geography, scope and time. Though it is often difficult in practice to negotiate a favourable licence when you are in a weak bargaining position, try and stand firm on your rights.
Q: I collaborated on a creative project, who owns the copyright?
A: You may be joint-authors of the work and therefore joint-owners of any copyright.
Whether you are joint authors will depend on:
(i) whether there is a contribution by both of you to the art work (it does not have to be equal)
(ii) whether there is collaboration (this does not depend upon intention but upon a shared design)
(iii) whether your contributions are inseparable (i.e. it is not possible to say that part of the work belongs to you and part belongs to the other artist)
Practical Steps: If you wish to avoid sharing copyright as a joint-author, ensure that you have a written agreement declaring you to be sole author and transferring any joint-copyright exclusively to you.
Q: Clients are using my work for more than was originally agreed. Can I stop them or charge more?
A: Usually yes, although we would have to know the scope of your original instructions. However, there is by implication a right to ask for a further fee where the work is used more extensively than originally planned. You should approach the client on that basis and perhaps agree an additional fee for each additional use of the concept. For the future you should think about the terms on which you wish to provide your skills to others and what is appropriate remuneration for the work you do.
Getting the right terms and conditions for your business is the best way of making sure you get fair pay for your work.
Where 2D work is commissioned and nothing is said about copyright, the legal title belongs to the creator of the work. In this case that means you. However, you always need to look at what was agreed at the time between the creator and the client to establish whether the client has a right (lawyers call this an equitable right) to ask that the legal title in the copyright be transferred to them.
Q: What happens if I take legal action against someone who copies my work?
A. If you are successful at a copyright infringement trial you will be entitled to damages – generally taking the form of a reasonable licence fee, though in rare situations you may be entitled to some of the profits of the person using your work. You can also get an injunction to stop someone using your copyright. This may be granted permanently after trial or prior to trial in the form of a temporary injunction. You may also be entitled to seize infringing copies.
Practical Steps: Litigation is expensive and uncertain. Even if you believe or are advised you have a strong claim it's often better to settle if a reasonable offer is made and grant the user a licence for past and future use. You should also assert your moral rights. If your work has been copied and you want legal advice on how to proceed contact us today.
Protect your intellectual property solicitors rights
We help clients by protecting their intellectual property throughout Wiltshire, Hampshire, Dorset, and Somerset and nationwide. Our intellectual property solicitors can see you in our Salisbury or Andover offices. Alternatively on the basis of phone and e-mail instructions, we can advise and represent you nationwide without even needing to meet.
For specialist advice on how to protect your intellectual property rights, contact our solicitors today.
