4 important things you should know about Intellectual Property (IP)
Regardless of where you are on your business journey, odds are you will own at least some intellectual property (IP) because it is defined as any type of idea, information, logo, name or designed that is used in commerce.
There are several types of IP but we're going to focus on 'intangible rights.' These are rights that exist on the property that you own within your business (e.g. copyright, trademark, patents, etc). When it comes to protecting these rights, you are trying to ensure that no one is infringing on your rights or vice versa.
We sat down with Janine Esbrand, a Corporate lawyer, to find out more about IP in practice and get her advice on how to put a few basic protections in place.
Q1: If I brief a designer to produce creative work for me (e.g. logo), who owns the IP to the design?
Answer: When you engage a graphic designer, photographer or anyone who is doing creative work for you, make sure that you have a clear agreement in place that states upon receipt of payment, they will transfer the IP of any work you have commissioned over to you. This should be included in their terms and conditions. If not, do make sure you include this before you proceed.
The general position of the law is that if you commission someone to produce work for you, the rights of the intellectual property should belong to you. However, this is a bit of a grey area so best practice dictates that you should make this point loud and clear. You don’t need an official contract if you’re just starting out or perhaps it’s a skill swap between friends. Simply clearly detail that the IP transfer to you in an email and then get them to confirm in writing.
On the flip side, if you’re creating work for a client it’s important to remember that the work belongs to you until the point that it is paid for - useful should you find yourself in a position where you’re chasing a client for payment but they are openly using any assets that you created for them.
In the event that you’re subcontracting the work out an external supplier or if you have an employee, ensure you have clearly stated that any work they produce belongs to your business and that they are agreeing to transfer over the IP.
Q2: What protection, if any, should I have in place for any digital marketing tools (e.g. e-books, training manuals, etc) that I create to generate leads for my business?
Answer: You may have noticed that at the bottom of a website or on digital materials you will often see ©. This is to show that the material is copyrighted, something that occurs automatically at the point in which you create something.
In the case of a toolkit, book or guide, you should include ‘Copyright © [YEAR] [BUSINESS NAME]. All Rights Reserved’ and a statement that clearly says, ‘This material cannot be copied or distributed without permission.’ Ultimately, if it came down to a dispute, you would need to prove that you were the first person to create the work and the party in question are the ones who copied it.
We’re lucky that we live in a digital age and we have easily accessible proof of when we create various files, etc. Back in the day, people used to post themselves a copy of their artwork, poem, book, etc so that they had the date stamp on the envelope as proof of when the work was created.
Q3: What’s the difference between ‘Copyright’ and ‘Trademark?’
Copyright applies to creative work that is recorded in some way (e.g. music, films, writing, photography, website design, etc). It gives the creator specific rights in relation to the work, prohibits unauthorised actions and allows the creator to take legal action against instances of infringement or plagiarism.
A trademark can be a name, word, slogan, design, logo or other unique device that identifies a product or organisation. Trademarks are registered at a national or territory level with an appointed government body. Note that, registering in the UK will only protect your mark in this country. You will need to register in every country that you are doing business in to protect your mark in that country.
There is an expense attached to getting your assets trademarked, so it’s wise to take this step only when you are happy with where you are as a brand.
Q4: There have been a few cases in the news, where a large company has ripped off the work of a small business. What’s the process for dealing with IP theft?
The difficulty when you're a small business against a large organisation is the clout that you have to fight against them. So, the first thing you need to do is reach out to the company to try and resolve the problem informally (e.g. ‘I can see that you’ve produced something very similar to me but I created it first.’).
If they are unresponsive, you can then send a formal cease and desist letter which basically instructs them to stop producing the work/product or you will be forced to take legal action.
The final step, assuming they are still unresponsive, would be to take legal action and get an injunction or court order to stop them from reproducing your work. However, going to court is an expensive and drawn out process and you’re best course of action is to try and solve it amicably at first.
Janine Esbrand is a Commercial Lawyer within the Oil & Gas industry. Before working in-house for an international oil company, Janine cut her legal chops in private practice in London for four years.
Alongside her day job, Janine is also a coach, supporting women in their careers by helping them to get to where they want to go next. As if she wasn’t busy enough, she has two young children and hosts the ‘Careers Beyond Motherhood’ podcast. You’ll find Janine on Linkedin, Instagram and her Lightbox Coaching platform.
Are you a member of The Inspiration Space? You can watch the full 20 minute Q & A with Janine in our new online hub, available on Slack.
Join the conversation
The next virtual Legal clinic with Janine is on 14th March at 12:30pm where we’ll be discussing the basics of writing your own contracts to cover things like client agreements, website terms & conditions and commercial agreements. Follow the link to book your place or find out more...