In this feature l online material l substantial copying l trademark infringement Staying ahead of the game Following the withdrawal of the Tokyo 2020 Olympics branding by Japan last month, Michelle Ward sets out the basics for staying on the right side of copyright law A longside the iconic Olympics branding, each host city creates its own logo for promoting its event. London 2012 produced graphics that were vibrant but perhaps not to everyones taste and Rio has not surprisingly produced a colourful image that fits with its flamboyant style. Tokyo is hosting the 2020 Olympics and, while its logo has not been as funky as its predecessors, the city has found itself embroiled incontroversy. The start of September saw an embarrassed Tokyo 2020 Organising Committee withdraw and abandon its recently released logo. Why? Because there were claims that it was a copy of another work. While the claims were originally rebutted by the organisers, there quickly followed news of withdrawal amid reports that the designer had previously admitted copying online material. So, just where do designers stand, given that existing material is often used for inspiration? What are the rules on copyright in the UK, and what can businesses do to avoid claims of copying? What precautions should firms take when launching a new brand or logo? All designers have to start somewhere, and it is not uncommon for existing material to be used to inspire a new design, taking into account current themes and modern styles that fit the particular target audience and market sector. But the problem is, where does inspiration stop and copying begin? The first and most fundamental rule is: dont copy. In the UK, copyright is an automatic right that comes into existence at the point a work is created. Although the UK Copyright Service exists in the UK, there is no need to register the existence of the right and since, in general, copyright will run for the life of the creator, plus 70 years, it is not short-lived. For the rights in a copyright Where does inspiration work to be infringed, actual copying either direct or indirect stop and copying begin? of the whole or a substantial part needs to have taken place. If the entirety of an existing work is taken, it is obvious that there is a copyright issue. And here is probably a good point to mention that just because something is on the internet it does not mean that it is copyright free or free to use. Even if a business purchases licences for existing works, the rights to use or adapt will be extremely limited and will often not extend to incorporation as part of a business branding. The more hazy area tends to be where certain key design elements in an existing work are taken and used as the basis for a new design. Thelaw on copyright infringement in the UK refers to the copying of a substantial part of a work, but with no definition of substantial. There is, of course, a reasonable argument that if a business has taken the central, dominant, or most distinctive part of an existing design, itwill have taken the core of the design and therefore made a substantial copy. But each case will depend on the specific circumstances and there is no hard and fast rule as to what a court will consider to be a substantial part. Furthermore, adapting an existing copyright workisstill an infringement if it is done without the consent of the copyright owner. In the UK, for a finding of copyright infringement, actual copying hasto take place, so it can be a useful defence to be able to demonstrate that a design has been entirely independently created, rather than copied. But that also relies on good record-keeping throughout the design process. If a business commissions a third party to produce the design, it will not automatically own the copyright of the work produced, nor will it have control over the design process but it will still be liable for any infringement if the design is used incorrectly. Although this creates a significant due diligence burden for a business, a few steps at the outset could help minimise the risk of an expensive and embarrassing withdrawal. So, what should trading standards advise a business with any concerns about infringing copyright? Firstly, dont copy. If the work is being produced in-house, ensure the business has clearly educated its design team on copyright issues, both what copyright is and what the basic rules are on infringement. Ensure that it keeps clear records relating to what is designed and when, and record the inspiration behind the designs so that early unintentional copying can be identified. If someone within the business but independent from the initial design process can see potential copying, this is a good, non-technical, gut instinct indicator that a designer needs to go back to the drawing board. If there is a challenge, those records may also be of assistance in helping demonstrate independent creation rather than copying. Additionally, the records can be vital if the owner of copyright ever needs to take action against someone who copies their work. As there is no formal registration system for copyright in the UK, if a business needs to evidence that it owns the copyright, this is the material that it will have to fall back on to evidence entitlement to copyright and ownership. Without it, any claim to copyright infringement may fall at the first hurdle. If an outside designer is engaged, businesses should ask where the inspiration came from, and check the written contract to ensure that the client will own the design at the end of the process. It is often a shock to businesses that they dont automatically own logos that they commission, but the default position in law is that the person who is commissioned owns the copyright unless a written contract with them states the contrary. A business should get the copyright status in writing, and check the small print. Also consider trademark searches. These can be undertaken for logos as well as names and, while they may be a little subjective, can help to highlight potential problems before a logo is used where owners have registered their logos as trademarks. The test for infringement of a registered trademark is somewhat broader than the requirement of copying for copyright infringement. Here, independent creation will not help you avoid infringement ofaregistered trademark as actual copying is not a requirement forasuccessful case. If the logos are sufficiently similar that customersmay be confused, there will be a finding of registered trademark infringement. This also means that, for a business, it is good practice to consider registering any new logos as a trademark, so that this can be relied upon, as well as supporting a claim to copyright infringement, if a competitors design ever gets too close to an existing logo. While these steps will not necessarily rule out a complaint completely, they may help to minimise and manage the risks that businesses face when launching new branding. Credits Published You might also like Michelle Ward is a trademark attorney at Tuesday 29 September, 2015 Look and listen October 2015 Wynne-Jones IP. Images: lazyllama / Shutterstock To share this page, click on in the toolbar