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Copyright… are you sure it’s yours?

October 16, 2020, By

Copyright ownership is a funny thing, anyone who heard about the case of the monkey selfie can attest to that (long story short, a monkey took a picture of herself and earned a substantial payout).

The issue really comes down to the fact that copyright, at least in the UK and EU, isn’t a registered right, and so there’s no certificate of ownership. Instead, copyright comes into being as soon as it’s created, the old saying being “copyright exists as soon as the ink is dry on the paper”. If somebody, anybody, creates an original work which falls within the relevant categories (i.e. literary, artistic, dramatic, musical, typographical and film or sound recordings) they will have created a copyright work.

The question, and often the dispute, then turns to who is the owner of copyright? In most cases the copyright owner is the author of the work, i.e. the person who wrote the text, drew the drawing or took the picture (hence the monkey selfie, although just to be clear, monkeys can’t actually own copyright works). This position is varied somewhat if the author of the work is an employee acting in the course of their employment – in which case their employer owns the copyright. However, businesses don’t always have employees create copyright works for them, the most common example being their brand logos. This is typically created by a third party graphic designer, normally for a fee. Often, once that fee has been paid, the organisation instructing the designer assumes that they now own the copyright… but unfortunately this isn’t the case. Instead, the copyright created by the designer (even if they were paid to do it) still rests with the designer and only a written agreement can actually transfer or “assign” that copyright to the instructing party.

This has been the subject of a huge amount of litigation in the past often with long forgotten designers coming out of the woodwork and asserting copyright over a particular work when, for example, the business is sold. Equally, if you ever need to rely on the copyright work for an infringement claim (someone copies the graphic work produced) you will need to prove that you’re the owner. If you can’t point to a legal assignment from the original author, then this is likely to be extremely problematic and it is likely to mean that your claim can’t be pursued.

So beware of ownership and try to always consider this whenever someone who isn’t your employee creates something for you. Luckily Briffa’s expert copyright lawyers are on hand to assist with any copyright issues that you might have. Just email [email protected] and we’ll take it from there!

Written by Will Miles, Partner

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