It’s a tough world for those who work in the marketing and design sector in the UK. Alongside competition for clients and high pressure
deadlines to deliver, there is always the very real risk getting into hot water over infringements of others’ design, copyright and trade marks. So what precautions can be taken to avoid legal troubles?
- ALWAYS check licence terms! This point cannot be emphasised enough, particularly in relation to the use of fonts. Fonts and typefaces are protected by copyright as literary works, primarily for the software and source code from which they arise. Digital fonts are usually licensed for use and it is very important that these licences are read and understood in order to avoid breach of licence and copyright infringement. This lesson was learned the hard way by NBC Universal when they used the Chalet font beyond the scope of their licence agreement.
Brand Design Co. (the copyright owner) sued NBC Universal and the case settled out of court for a record $3.5 million. A similar case occurred in France when French anti-piracy organisation Hadopi were pulled up for the use of an exclusive corporate typeface in their logo which they were not authorised to use. Type designers put a lot of time and effort into creating typefaces and deserve to be compensated for the use of their creations. Misuse of fonts will result in high costs, both financial and reputational, and it is therefore vital that licences are appropriate for the type of use and understood by those who purchase them. For more information on fonts and where to find them, see the TypeRight website (http://www.typeright.org/).
- Know your images. This is vitally important, as images (particularly photographs) are increasingly the subject of lawsuits in the UK. The most recent case involved a charity being taken to court by a professional photographer over its use of his photographs on its website. The charity had hired a web design company to create the website, and the company had used photographs from a government website believing them to be covered by Crown copyright. However, the photographs had been licensed to the government by the photographer, and he sued the charity for unauthorised use of his work. The web design company would likely have been a defendant in the case, but it had gone out of business. The judge awarded the photographer damages in the case and the charity were asked to pay the sum of £10,000 plus legal expenses. The charity subsequently went out of business.(http://aandalawblog.blogspot.co.uk/2012/02/he-who-dares-infringe-copyright-fails.html).
It is a hard lesson to learn but it is a sobering reminder that nothing should ever be assumed. Always ensure that images used in advertising and design are either owned outright or appropriately licensed for commercial use. In cases where a third party creator (individual or company) is used to produce design work, make sure that appropriate legal safeguards are in place via a contract to limit liability.
- Paying for work to be done doesn’t equal ownership of it. Following on from the last point,if an independent contractor or freelancer is paid to undertake creative work, they continue to own the copyright in the work until there is a written assignment of it. Make sure that the contract offered to them before they commence work makes it very clear that copyright is to be assigned or exclusively licensed. Moral rights will also arise in connection with their work. These rights can’t be assigned, only waived, but be aware: not every creative will be happy about being asked to waive their moral rights.
- Be careful of designing a logo that is likely to mislead. As obvious as this might seem, it happens; the latest occurrence is the legal dispute between Babycham and Cath Kidston, where Babycham argue that Cath Kidston’s baby deer logo on products at Christmas infringed the drinks firm’s rights (http://www.telegraph.co.uk/foodanddrink/foodanddrinknews/9868009/Babycham-sues-Cath-Kidston-over-leaping-baby-deer-logo.html).
This is not an easy issue to deal with because there may not always be an awareness that what has been created could be misleading. It’s unlikely that this sort of situation can be planned for, but it is an infringement to trade off another brand’s goodwill, particularly if similar goods or services are being offered. It may be worth taking out some professional indemnity insurance as a precaution.
By Emily Goodhand, Copyright & Compliance Officer, University of Reading. Twitter: @copyrightgirl
