As a Commercial Solicitor, copyright is one of the areas of law I get asked about most. Business owners, whether nurturing start-ups or managing empires, often spend sleepless nights worrying about the same thing - that someone, or some other business, will steal their ideas or reproduce their work.
Unfortunately, this is not a totally unfounded fear. Intellectual property infringement happens all too frequently and SMEs are particularly vulnerable. Fortunately, it is illegal and therefore businesses can protect themselves and, if that fails, take legal action.
What Is Copyright?
Copyright falls under intellectual property law which is an umbrella term for those laws protecting original ideas and work. Patents, trademarks, design rights and copyright are all types of intellectual property.
Patents are ideal for entrepreneurs who have created something unique which needs protecting, usually an invention, recipe or formula. Procuring a patent can be expensive and difficult to apply for so they're used primarily for key products only.
Trademarks are badges of origin. They can be a company name or logo or both. You can register a trademark to protect your brand.
This leaves your marketing materials and the work you produce. It would be impossible to patent, trademark or protect these individually so they fall under copyright law. This grants you automatic legal ownership over almost any work you create.
This may include (but is not limited to):
Artwork and illustrations
Photographs
Articles, blogs, books, scripts and other written content
Websites, graphic designs, logos, technical drawings, etc
Media created including music, video, any audio and even social media content
Computer software (including the code)
In many ways, copyright law is quite straightforward. At least, it is until you encounter a problem. For business owners, copyright issues are usually one of two things. Either;
You’ve had your copyright infringed
You’ve been accused of infringing upon someone else’s copyright
If this is happening to you please do get in touch with me now and we’ll discuss your options and find a way forward.
To avoid either of the above happening to you, here are the essential 5 things every small business owner should know about copyright:
1. Copyright Matters
Ownership over the work you produce is essential to a successful business. Moreover, it’s essential for creating and supporting a competitive and innovative marketplace. Copyright grants protection over:
Freelancers and creatives having their original work reproduced and/or reused without payment or permission
Businesses having their website and/or marketing materials copied
Companies being set up to look like yours and masquerade as your business
Copyright infringement may apply in a range of circumstances. For instance, if someone reposts a photograph you’ve taken without your permission. Yet, it would also apply if another company copied your entire website, marketing materials and business plan and effectively steals your company identity.
The latter could destroy a start-up or new business almost overnight but, for an aspiring business owner, copying your business idea and identity saves considerable time, effort and expense. Fortunately, copyright law makes it illegal (though not necessarily impossible) for them to do so.
Similarly, if you make a living from, or are building a professional reputation through your creative works, then the ability for others to use your creations without payment or permission would severely limit your ability to make a living from your talent. Therefore, copyright exists, largely, to give value to your content (your intellectual property).
2. Copyright Is Automatic
Unlike patents or trademarks, there is no need to apply or register to protect works that fall under copyright.
Copyright is automatically granted to the author of any work deemed ‘original’. This does not mean the work must be unique, however, creative decisions that make the work uniquely yours must have been made.
If you’re a business owner, then any work created by an employee would fall under your company copyright. However, if you are working with freelancers, with agencies or are buying works produced by someone outside of your employment then copyright ownership should be addressed within a contract - you may need to get the ownership of their works assigned over to you (or at the very least obtain permission to use via a licence).
If you have been hired to produce works for a business then you’ll likely be licensing your copyright. The details of this should be covered by a legal contract that balances the needs of the company with the needs of the freelancer/contractor. Read on for more information on licensing copyright.
3. Copyright Is Worth Protecting
Yes, copyright is automatically granted. However, that does not mean there is nothing else you need to do. Let’s look at examples of when copyright might be at risk:
Copyright is infringed upon accidentally
In many cases, copyright infringement is accidental. Of course, it’s still unlawful and therefore you can take action. The problem is that, even if the work is immediately released by the infringer, damage may already have been done. Therefore it’s important to make it very clear that your work belongs to you and is legally protected.
Accidental infringement is an issue that often arises when posting original work on social media platforms and can usually be prevented by including a watermark on the image or a disclaimer within the accompanying content.
Ownership of copyright is unclear
Without contracts, companies and creatives working together may find themselves unclear on who owns the copyright to the work produced. As a result, they may themselves be in dispute, resulting in either or even both parties losing time and/or money.
So, although the law is generally on the side of the owner of the original work, it is wise to further protect your copyright from the outset by making it very clear that your work must not be used without your written permission.
Copyright protection can be further protected through: Use of the © symbol - used commonly on websites and printed materials in the form of a copyright legend: © 2023 Aubergine Legal Limited. All rights reserved.
Stipulation of copyright ownership in terms and conditions or terms of sale
Watermarks or disclaimers
4. You CAN Fight Copyright Infringement
Regardless of whether you have taken extra actions to protect your copyright, as the legal owner of the original work you have a right to take legal action against anyone who uses, reproduces or takes credit for your work. Therefore, you would be able to file legal proceedings through the courts or the Intellectual Property Office. Before doing so however, it would be advisable to speak to a Commercial Lawyer, such as myself, who specialises in IP law, as you may find that there is a simpler and more cost-effective way to settle the dispute.
Unfortunately, small businesses and freelancers are sometimes cautious about taking action against larger entities that infringe on their copyright. However, the law usually sides with the author of the work and therefore, fighting these cases can be simpler than they may appear.
That said, if the original work has been licensed to you or your business then you have a legal right to use it. In cases where this is challenged, lawful usage of the materials would depend on the licensing agreement.
5. You May License Copyright
Copyright has value because it can be licensed. To take an example, an author may make money through the publication and sales of their books. The more they sell the more they are worth and therefore, the more the copyright is worth. If another person or business wanted to make a TV series, stage production or film based upon any of the author’s works, they would have to be granted permission. This would involve licensing the copyright, usually for a fee, which may grant them usage, but not ownership, of the material.
Most creatives and freelancers include copyright and intellectual property terms of use within their terms and conditions. A lawyer can help you properly draft these to ensure you are protected and that licensing of your work is fair and, as far as possible, futureproofed.
For larger projects or higher-cost commissions, a separate contract entirely may be required. This might be referred to as an Assignment Of Copyright Contract and would usually be drafted by a lawyer to be used by the creative or the commissioner as a standard contract or as a unique document to cover a specific project.
Essentially, what all business owners should know about copyright is that it enables businesses and individuals to increase their worth, make money and compete. This gives copyright value and that makes it important to protect.
Need Advice On Copyright?
If you have any questions regarding copyright or would like to discuss how yours might be protected or licensed then please get in touch with me, Clare Veal, at Aubergine Legal. I would be happy to advise and support you in securing and protecting your intellectual property.