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4 October 2009
I have designed a logo. I have paid for the logo. The Agency
unbeknown to me employs a free-lance designer to produce the design. We never
mention copyright. Who owns it? Do I because I have paid for it. Does the agency
or the independent? Confused! Well, you should be. It is one of my most frequent
You may protect a logo from unauthorised use by (1) copyright
law (2) trade mark law. The former protects the skill and labour that has gone
into the creation of an original work. A name Nike, Tescos cannot be protected
under the laws of copyright.
However, a drawing is capable of being a protected work. So if
an artist uses his skill and labour to draw a word or phrase in a stylised way,
as in the case of a logo, his drawing is capable of being an original work,
protected by copyright law.
Unauthorised persons are not entitled to copy it. This is so
irrespective of whether the logo has ever been used by way of trade, and
irrespective of whether it is known to any members of the public. Of course, the
artist gets no copyright in the word or phrase, as such. Copyrights and Trade
marks stop other people from doing something.
The rights are purely negative.
Section 11 of the Copyright, Designs and Patents Act 1988 says:
(1) The author of a work is the first owner of any copyright in
it, subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work is made
by an employee in the course of his employment, his employer is the first owner
of any copyright in the work subject to any agreement to the contrary.
This defines the legal title to the copyright. But it is
possible for a person to own the legal title to property, not for his own
benefit, but for the benefit of another person. That other person is said to be
the owner in equity. The courts have developed this rules over the years.
As stated in the Griggs case a fine example was given by
"For example, suppose a free-lance designer orally agrees with a
company that he shall create a website for use in its business, for payment, and
on terms that the copyright shall belong to the company. Because the designer is
not an employee of the company the legal title to the copyright belongs to him,
because the Copyright Act says so; but the equitable title belongs to the
company. This means that the designer can be called upon to assign the legal
title to the copyright to the company; and, if he refuses, the law will compel
him to do so. An equitable title is thus stronger than a legal title, with one
exception. If the legal owner should sell the copyright to a third party who
buys it in good faith, without having had notice of the equitable interest, the
buyer acquires full ownership, free of the claims of the equitable owner".
It makes so much sense therefore when instructing a designer to
insist on a document, signed by creative which transfers the legal title to the
Michael Coyle is a Solicitor Advocate and can be contacted at
About the Author
Lawdit Solicitors offer services and
advice for litigation, commercial contracts, Intellectual Property and IT legal
agreements. We are experts in commercial law with a heavy emphasis on
Intellectual Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of Higher Court
Advocates and we are the appointed Solicitors to the largest webdesign
association in the world, the United Kingdom Website Designers Association.
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Article Published/Sorted/Amended on Scopulus 2009-10-16 19:59:59 in Legal Articles