This is a common misconception and the short answer is, “not always.” There are times when you may pay a consultant or sub-contractor to design a logo for example and still find that it’s owned by the consultant. Copyright is the issue here.
The reason for this is because copyright law, which gives the creators of certain works the right to prevent others from using the copyrighted parts of those works. So, if copyright exists in a logo (and it usually will) there needs to be something in writing that transfers copyright to you and, even if there is something in writing, it must be clear and reflect your requirements. If not, your consultant could prevent you from using it or charge you extra to use it in the ways you want to.
Think about the future
It’s unlikely that you’ll be stopped from using something at the outset since it has been prepared for you and paid for by you. However, problems may arise in the future.
For example, one client commissioned an engineer to design a piece of machinery. The copyright in the designs belonged to the engineer. This didn’t cause any problems while the client and engineer were working well together. But when the client wanted to switch to another engineer, the existing engineer wouldn’t let the client reproduce any design drawings for use by the newly appointed engineer, even though the client had paid for them.
As with many of these things, the outcome was a negotiated settlement, but it still meant that the client had to pay out more money to use documents which had already been paid for. Not only that, but there was wasted management time, legal costs and project delays to be considered.
See also, our blog, called: Don’t learn the hard way!
Ensuring your position
The first thing to ensure is that you have the rights to do what you want with what you have commissioned – once you’ve paid for it.
As examples, if you have commissioned a website, you will probably want the right to update it. If you have commissioned leaflet designs, do you have the right to allow others to download these from your website? It’s always important to think very carefully about what you want to do now and what you might want to do in the future. If you commission a web-site, it’s common for the designer to host the site, but let’s say the designer becomes insolvent or you want to change your hosting arrangements, do you have the right to transfer your site to a different host?
This will not be a big issue for every business, so don’t panic. But it’s better to ask yourself the right questions than not to have asked them at all.
The importance of a written agreement
Remember, if there is nothing in writing, then the consultant will own the copyright, so you won’t be entirely clear about what you can and cannot do. If this is an area of concern for you, you must get something in writing and get it clarified at the outset.
It’s common for consultants to include provisions in their terms to say that they own the copyright (or all intellectual property rights to include copyright) in the work they are providing for you, but they will give you permission (usually called a “licence”) to use it. If this is the case, you should check that the permissions you have match with what you want to do now and in the future. In some instances the distinction between ownership of intellectual property rights and having the right to use them becomes very important.
Intellectual property law is a very complicated area of law and copyright is only one part of it. There are other aspects of a licence that would need to be considered. If you are at all unsure, please contact Tracey on 01202 729444 or e-mail tracey@law-point.co.uk.
