The other evening at London’s Sarabande, Sally Britton, a partner at law firm Mishcon de Reya, demystified key elements of intellectual property law for a room of creatives, lawyers and prospective founders. Intellectual property, or IP, is the ownership rights relating to intangible ideas and creations. IP can be bought, sold, and monetised – or used without permission. Britton spends her time working with clients “on understanding what’s going to secure the value that they’ve created in their brand.” It’s important to know how to protect your own intellectual property, but also how to avoid infringing on the IP of others.
IP law is broad, but “there are two subsets that you really need to think about,” explains Britton: registered rights and unregistered rights. Registered rights generally give you a monopoly right, and you must apply to an official body in the relevant territory to obtain the likes of trademarks, patents or design rights. Trademarks tend to have “the most tangible value,” but involve costly fees and more extensive paperwork. On the other hand, and more relevant to emerging creatives, are unregistered rights. These include copyright and arise by default, offering baseline protection against unauthorised copying and unfair competition as long as certain criteria are met.
The golden rule is to keep clear, dated records
Britton stresses the importance of keeping clear, dated and consistent records as you work – especially of the big ideas you might want to use as the core of your brand. Britton shared an easy-to-use spreadsheet template with the following headers: Design Element, Images, Date Created, Who Designed, Country of Creation, Date of Disclosure Outside Business, and Where Evidence Stored. These records aren’t solely providing evidence for litigation; similar ideas to your own can occur independently, and sometimes, a similar or even identical work can exist without it being an infringement on your IP. Detailed and dated records will provide support against infringement or accusations.
“There’s a tension in IP between granting protection and locking things down. It’s there to protect creativity, but if you lock everything down, no one can create anything.”
Copyright arises automatically, but there are conditions
Copyright protects the expression of ideas, stopping others from taking substantial and novel parts of the work. But this means the idea must be fixed in a tangible or digital form – so if you commission someone to bring your idea to fruition, like a graphic designer to make the logo or visual identity for your brand, you need to get a paid, written assignment clearly establishing who owns the idea. A common misconception about copyright is that changing X amount of things makes it okay to use an existing design, but this is not the case. “It’s a qualitative, not a quantitative assessment,” as Britton puts it. “You could change any number of things, but if you take that essential part of the piece that makes it original, then you’re infringing the copyright.”
Design rights have a time limit
Design rights are common in fashion, as they essentially provide protection for the way something looks and feels. There are registered and unregistered versions of design rights, and it’s worth doing your research into what specifically will apply to you as the UK’s framework is quite complicated post-Brexit. Registered design rights are “a really good kind of stepping stone in terms of protection for those things which don’t immediately function as trademarks.” To obtain design rights for an idea, you need records of who created it, where and when it was created, and, crucially, you must register it within 12 months of first showing it to the public.
Don’t let social media compromise your design disclosure
You might think a behind-the-scenes photo dump will drive awareness and excitement for your new work before you launch, but it could potentially invalidate future claims for design rights. The 12-month grace period to register design rights begins with first disclosure, which can be unintentionally done through social media posts. A cautionary tale: Puma’s attempt to register the design of their Fenty ‘creeper’ trainers in 2016 was invalidated by an Instagram post by then-creative director Rihanna wearing the design more than 12 months prior. Whether or not you work with influencers or celebrities, be clear and specific with your team about what can be captured and when it can be shared.
Employees, create with caution
In the UK, the originator or author of the work owns the copyright and/or design right. However there is a big exception if the work was created by an employee. Even without an employment contract, your IP may belong to your employer if created within the parameters of your role, so make sure the status of your engagement is really clear. “It’s about being smart in terms of what you share,” says Britton. “The real issue is when you create something that is your signature,” and find you’ve given away the driver of your intellectual property.
AI is making IP even more complicated
IP law is becoming even more prominent in discourse today as every part of the industry grapples with AI – look at Getty Images’s ongoing case against Stability AI for allegedly using its images as data inputs for training and reproducing its copyrighted work in its outputs, as an example. If you choose to use AI in your work, Britton advises that you do your due diligence by carefully reading the T&Cs of the AI provider, and looking at the tool’s sources to make sure they aren’t infringing others’ IP. Some tools also “give themselves a perpetual license”, which means they can take any work you create with their AI tool and license it to third parties – so, as a general rule, don’t rely on AI when creating high-value IP like your logo.
