Alec Dudson talks to Kevin Poulter, and employment lawyer, and Johny Mayner, an IP & Media lawyer about the legality of intellectual property.
They explain that legal matters are important in design. As a designer you need to ensure that what you are creating doesn’t cross and lines with other companies in the same industry.
A good way to check this is the UKIPO, which is a free database of registered trademarks for naming and logos.
When creating designs it is sensible to keep a good record of your progress and document your work so, if needed, you can show how you got to your final idea. This includes original design drawings and conversations with clients. The metadata of your documents can act as good proof, bu dated emails with the documents attached are an even better way to prove how your idea progressed. To ensure you don’t run into problems with this, it is a good idea to keep files organised from the beginning so you can find any of this information when needed. Some people also post their designs to themselves in a sealed envelope as the postage date stamp can act as proof legally.
To protect the legality of the client and designer relationship, it is important to get a good written contract in place early on. You need to establish who owns the copyright of what you produce and who’s responsibility it is to check that our design is not too similar to any others out there already.
As soon as you create something, copyright comes into action on its own. But you need to ensure your contract position with client and any 3rd party people is clear. If a designer project is collaborative, you need to make sure it is clear who owns what.
It is more of an issue when their is a trademark case. This is when someone from the same or a similar industry has a similar design, as it can cause confusion and result in a loss of sales for one company.
You can also decide on how you want to get paid for something. If your design is being used again and again, do you want a one-off fee or a payment for each reuse?
An example of something going wrong with a logo is the controversy surrounding the original logo for the Tokyo 2020 olympics. A design studio called the logo out as having been copied from one they made for a theatre years before.
Legally the logo would have been fine, as the similarities are minimal and the sectors are completely different so it wouldn’t have caused any confusion. However, there was such a public outcry about it on social media, that Tokyo Olympics decided to scrap the logo and use another. The shows the, often damaging, power of social media. Kevin and Johny tell us how a weak legal claim will often go to social media as the bad press can be almost as powerful.
It is more of an issue when their is a trademark case. This is when someone from the same or a similar industry has a similar design, as it can cause confusion and result in a loss of sales for one company.
Publishing things online is risky as it mens you up to copyright claims and the possibility of people copying your work. Bad PR can be enough for a client to drop you as their designer.
Indemnity infringement clauses in a contract can have serious ramifications. If you are an employee then the company is responsible, but if you work for yourself, you need to ensure you totally understand the contract between you and the client. You need to know what responsibility you have if things go wrong.
If your copyright is challenged, you can often settle outside of court to save costs.
You need to complete checks when you create something, but they won’t ever show up everything. Designs in the same category as yours are the most important. If you have a registered trademark it shows that you have checked.
Guidebook to Intellectual Property
Patent – a patent protects an article that is better in some way than what went before it. It means that competitors must do the design work or research not heir own to get to the same place. Last for 20 years.
Unregistered designs – unregistered design offer short term protection for designers as long as all stages of the design process are recorded.
Registered designs – this costs the designer and must be done before the design is shown to anyone. Now anyone infringes the design by creating the sea designs even if they came to it on their own.
Copyright – mainly to protect literary, artistic or musical works . It arises automatically as soon as the work is created. Lasts for the life of author plus 70 years.
The main function of copyright into stop peoples work being exploited. The works themselves are protected but not the ideas. Eg. A photo itself can’t be reproduced, but another photographer can go and take the almost exact same photo.
It doesn’t infringe copyright to take on another brands name or slogan. The designer owns the copyright firstly, unless made in employment then belongs to the employer.
Other Research
Reading Design Week’s blog I found out that when you create a design for a client “The client does not get copyright automatically the copyright stays with the designer unless they sign it over in writing.” This therefore needs to be something you consider in your quote and contract. Whats more, “Your client can use the design only in the context it was first commissioned for. If they want another designer to adapt your design, they will need your permission first.” (Schrijver 2019)
The client might want full control of your work and its future use, which would be when then want you to sign over the copyright to them.
“This can be useful leverage when negotiating your offer: it’s good practice to bill both for labour and copyright. With smaller clients who have smaller budgets, you can instead opt to keep your copyright, explaining to them that you would prefer to be involved as a designer on subsequent iterations.” (Schrijver 2019)
99 Designs website also offered some clear insight into your intellectual property.
“your creation is your intellectual property—until you sell your ownership rights to a client.” (Kramer 2018)
The exception of this however, is if you are a full-time employee. Then, the designs you create as part of your job are your employer’s intellectual property, not your own.
“When something is your intellectual property, you have the exclusive right to use, alter and profit from it. You also have the right to license your work to others at your discretion.
- Copyright: This is typically used for artistic and literary works.
- Patent: Patents are used to protect innovations, inventions and new technical solutions to existing difficulties.
- Trademark: Trademarks are used to distinguish individual companies’ goods and services from those provided by other companies. Slogans, mascots, company names and other pieces of branding are protected with trademarks.”
The line between what is inspiration and what is copying is quite indistinct. You need to ensure you apply inspiration from someone else’s work to yours in a ‘new way’. The way you apply this idea needs to be transformative.
“always avoid imitation and aim for transforming and evolving an idea to a point where the connection to the original is not visible anymore.” (Kramer 2018)
https://99designs.co.uk/blog/design-resources/copyright-infringement/
If you make a simulation logo or word mark that resembles any current brand in a similar service, then you may be subjecting your client to claims of infringement.
“There are statutory laws in place that give you a degree of protection as soon as you create your work, but having work registered is a requirement to sue for infringement, and registering before infringement happens will make copyright issues that much easier to resolve, and save you cash.” (Cartwright 2016)
It is possible to license limited usage rights to a client, in which case you keep your own copyright and don’t have to pass editable files on. They also make the important point that “Regardless of what rights you’ve given your client, you should ensure that you retain the rights to show the work as your own in your portfolio.” If you have made something great you want to be able to show it off in the hope of it helping to attract other clients. (Cartwright 2016)
Workshop Challenge
This week I decided to look into True Start Coffee a coffee brand based in Bristol. I looked at their website and branding, before trying to separate each part out in terms of what I have learnt about ip frameworks this week.
True Start Coffee
https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00003542503
Name – There are a few other companies called True Start. I found a coaching company and an affordable housing foundation. These companies work in such different areas however, so legally it wouldn’t be a problem. True Start Coffee would still want to register for a trademark on their name to ensure that no-one copied it, or so they would be legally covered if another company wanted them to stop using that name. The individual blend names may need to be trademarked as well.
Illustration – The illustration that makes up True Start’s logo would be the intellectual property of the illustrator or designer who created it, unless they signed the rights over to the company.
Branding – True Start would need their logo trademark registered so no one would be able to use a similar design. They would need to check that there is nothing similar out there in other drinks or coffee retailers mainly, but is safer to steer clear of similarities with any other sectors too as even if it wasn’t a problem legally, the backlash caused by being called out on social media can be as damaging. For a reasonably small family run company like this it would have to be a big consideration. Their tagline #Divein might also need to be trademarked so another simular company doesn’t pick it up.
Recipe – They also might want to patent the system they use to make their coffee or the beans and process used to create their particular flavour.
Photography – The photograph in this advertising would also be subject to copyright either to the photographer themselves, or the company if the photographer has signed the rights over.
I then designed this information into a design. I tried to mirror the feel of the company in my design, using similar colours and shapes, as well as choosing a similar font to tie in with the branding. To link into the splashes I drew some soft curved shapes that I then used to add interest to my design.
I started with a design mirroring the shape of the cold brew coffee cans to house my text, but this ended up listing the amount I could write, so I changed the design to give me more space and flexibility.
Reflection
The legality and copyright status of your design is a very important consideration. Contracts, copyright and the law need to be carefully considered and understood, especially if you are working directly with a client not through a company or agency.
In general the best practise seems to be, ensure that you don’t copy any other artist, illustrator or designer. If you are inspired by their work, make sure yours is uniquely yours and can’t be construed as a copy. Keep track of your design development in a dated way, so you can prove you came to your idea independently if needed. It is also important o properly research other designs as much as possible and ensure you have a full understanding of the contracts given to you by a client.
This week has given me a much deeper understanding of the importance of this issue and the tools to ask the right questions in future to ensure I make the right legal decisions when it comes to contracts with clients or my own designs.
Extra Research after Webinar
Types of business insurance cover
Professional indemnity
Professional indemnity insurance is there to offer protection and support if you or an employee are alleged to have been negligent, or if a client believes you got something wrong that led to financial or reputational damage. We’ll be there to help with compensation costs and legal fees so you can get on with running your business.
Public liability
Public liability insurance protects you and your business if someone claims their property has been damaged, they were injured or fell ill because of you or one of your employees. Whatever you do for a living, accidents can happen, and they’re not always directly related to the job. If a customer, courier or passer-by makes a claim, a public liability insurance policy helps to cover legal and compensation costs.
Product liability
Product liability insurance provides an extra layer of protection as part of your public liability cover. If someone complains about a product you’re involved in, whether your company designed, manufactured or sold the product, you’re protected against any costs. Product liability cover might be especially important in the retail and technology sectors and Hiscox can build it into your public liability cover.
Personal accident insurance
People power is everything for small businesses and start-ups. That’s why personal accident insurance could be so important – if you or an employee is unable to work due to an accidental injury, we’ll keep your business healthy with up to £250 per week. If a serious accident affects your livelihood, this type of cover also pays out a lump sum. It helps you safeguard against the ultimate ‘what ifs’.
Lizzie Wa Design 
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