This paper will give you a brief overview of the issues regarding copyright and Intellectual Property rights and the questions you need to ask of any Agency you are intending to employ.

Engaging an agency to produce marketing collateral or creative material is a normal exercise in any business, be it logo designs, web sites or even the shooting of photography. It is often the perception that once an agency has been paid for their services, you, the client, own the resulting output. To a degree, this is true, and yet, by the same token, you are far from being the lawful owner.

The law states that the intellectual and copyright ownership of the material produced is automatically assigned to the creator. Ownership is not transferred when the material is delivered to the purchaser unless it is explicitly assigned. If a written agreement is not in place, the creator of the material (i.e. the design agency) is only licensing the material for the specified purpose of its creation.

To demonstrate the point;  if you have a web site designed that includes a logo, written material and photographs of your product range taken by a commissioned photographer, you would expect that, upon payment, you would have full ownership of all of that material. This is not the case.

If, at a later stage, you decided to produce a corporate brochure which was to feature the logo, use the supplied copy and the photographs included on your website you would have to receive written permission or pay another fee for an extension of rights.

There are many organisations, which reproduce images and replicate material in a variety of formats via agencies and/or creatives which are different from the originators. Although rarely enforced, this is in fact an infringement of the original creative’s intellectual property rights. He/she still retains ownership of the creative material; they have just licensed the user to use that material for a specific purpose.

Many organisations have a logo designed early on in their development and there is often an unquestioning belief that that particular aspect of their branding is owned outright by the organisation. Unfortunately, this is not always the case and the fact that the formal assignment of the copyright had not been obtained from the originator only comes to light during the due diligence process, which takes place during the sale of the company.

This is critical for organisations that intend to leverage value for their company through the value of their brand. Although the brand of a company encompasses many things other than a logo, it is critical that the key creative components are procured and assigned appropriately to ensure the company has firm foundations that may or may not become synonymous with their tangible value. Can you imagine the impact on the share price if the Coca-Cola Corporation did not own its name and logo?

It is often difficult to discover whether an organisation owns all of its critical material. Although intellectual property extends beyond marketing collateral, it is often expressed through the physical manifestation of specific items such as a name, phrase, image or process. So you must find out if you own these essential elements and take the appropriate actions.

Top Ten Questions to Keep In Mind

1. Does your company have an up to date Asset Register?
2. Do you have any protective licences of enforcements certificates?
3. Do you have an arrangement with an IP lawyer?
4. Do you have an IP policy process?
5. Do you own your own web address and is it hosted on your own server?
6. Do you have access to all codes such as FTP access to databases held on external servers?
7. Do you have a method of taking action and enforcing your rights?
8. Have you established a process for procuring IP liable material?
9. Do you have Terms & Conditions that cover the assignment of intellectual property and copyright?
10. Do you have a process for keeping patents and registrations up to date?

Summary

The assets of a company are more than just the physical products or services that they produce. They include the intellectual rights that are associated with those products or services. The collection and protection of IP assets are integral to the process of realising a company’s full value.

The points above are not intended to be read as legal advice. They should in fact act as a guide in the process of understanding what a company owns, and what it does not, from the beginning, when it counts most.

Please feel free to give us your thoughts and feedback. If you are concerned, or you feel you may not own what you thought was yours, drop us a line and we can see if we can give you some advice!