One of the most serious problems with IP is that there are so many myths, and so much misinformation around it. The subject is not easy for people to understand, therefore, because they will be fed wrong information, sometimes even by the very people they engage to help them with their branding. That’s because the level of knowledge in the industry is variable because organisations training designers and marketers do not currently include proper training on names and other intellectual property in their syllabuses. So people just have to pick up the missing information as they go.
Here are 8 myths, not arranged in any particular order, that you would do well to note:
1.That copyright is secured by posting a copy of your work to yourself.
I have often come across advice, even sometimes from business lawyers, that says that all you need to do in order to establish proof of your ownership of copyright is to put the evidence in an envelope and post it to yourself, making sure there is a clear postmark on the envelope establishing the date of its posting. This is referred to as poor man’s copyright. Unfortunately, it is completely wrong advice! The courts certainly would not accept such a document as adequate proof of copyright; for a start, the envelope could have been tampered with after posting. In the UK the best way to establish proof of the date on which a copyright work was created is to use a statutory declaration. This is a standard document to which you attach your copyright works and swear it before a solicitor or other commissioner for oaths. The cost of doing so will be less than £15. Alternatively, use a reputable organisation whose purpose is to record your copyright details.
2.That you own copyright to something because you paid for it.
This is not true. The contract terms commissioning the work to be carried out govern whether you will have copyright. If there is no written contract, or assignment of copyright in those terms, copyright will automatically arise in favour of the creator rather than in you. The person paying for the work just has a licence to use it (and this licence is a lot narrower than the rights copyright ownership would give). In most countries worldwide, copyright will belong to the creator of a work unless there is a written agreement to the contrary. This is one reason why you should not commission an agency to develop your brand until you have a written contract with the agency detailing who is to have ownership.
3.That you need to register your copyright to secure protection to it.
The Berne Convention and other international treaties ensure that copyright protection is secured internationally. If registration is not required in your home country, then you automatically get the benefit of copyright protection in all the countries that are signatories to these treaties – even if in other countries, registration is a pre-requisite of protection. The one exception to this worth noting is that in the US, any damages claims are subject to prior registration. To be on the safe side, then, some people do choose to register their copyright in the USA.
A Pirate Christmas Carol
The reason why copyright is now the subject of international agreements is to protect creators from financial loss due to international piracy. Here is an example: when it was first published in 1843 Charles Dickens’ famous story A Christmas Carol sold 6000 copies. Yet Dickens made little money from the book. This is because, in Victorian times, copyright laws only protected a work inside the country in which it was first produced and created. After A Christmas Carol was published, copies started popping up abroad in America, produced by publishing houses very cheaply –and these pirated copies gave Dickens no financial benefit. Copyright is an important right which underpins the economic benefits in many industries – and now with international agreements in place, those economic benefits can be protected through most of the world.
4.That registering a trademark is optional.
A trademark acts as a sort of virtual container in which the brand value generated in the business is captured. Generally, this container is only effective if the trademark is registered Although it is possible to have unregistered trademark rights in some common law countries, unregistered rights are very weak. It is far less expensive to enforce your rights in a name you have registered. I have a whole section on naming and protection of names in my forthcoming book Brand Tuned, The New Rules of Branding, Strategy and Intellectual Property.
5.That you can secure rights over an idea, method, or process by writing it down and having proof that it was your idea.
If your idea is patentable, you need a patent to protect it from copyists –copyright is not sufficient to protect a patentable invention or idea. The law does not give rights to the person who first thinks of an idea, so writing down your ideas and depositing them along with drawings from a professional does not give you rights to the idea. Depositing material would at best help provide evidence that the work was created before the date it was deposited. This could be useful proof to establish the date of creation of a copyright work, but in the case of a patentable invention, process, or idea – it’s virtually pointless because of the next myth I will bust.
6.That copyright protects the ideas underlying your writings.
Ideas, systems, or methods are not protected by copyright. What copyright protects is the expression of an idea, system, or method: in other words, the output. Copyright protects the way an idea is expressed rather than the idea itself. This is often referred to as the idea/expression dichotomy. For example, let us take a copyright work like a food recipe: the words of that specific recipe are protected by copyright. The ideas contained in the recipe are not. If someone sets your recipe out in their book, or copies and distributes it, they would be infringing your copyright. If they cook what is in your recipe, using the ideas in in, they are not. So, if it is a recipe for making apple pie, anyone can make apple pie to the recipe and sell the pies commercially, or they could vary the recipe and cook their own version of apple pie to make and sell or give away.
This also means that if you suggest an idea for someone else to execute, such as an unusual looking picture of a bird, or you give them an idea for a story they could write, the creator will own copyright in the picture or plot produced. You as the person who came up with the ideas will have no copyright in the work produced because of your ideas. That is, unless there is a legal agreement between you and the other party that states otherwise. Ideas are not protected by copyright. The expression of ideas is.
7.That names are protected by copyright, or that it’s sufficient to secure the .com domain in order to be able to use a name.
As a matter of policy, the law protects names through trademarks rather than through copyright. Regardless of how much investment or time is put into the creation of a name, no matter how clever it is, names are generally outside the scope of copyright protection. Trademarks are what give you exclusive rights to a name.
This means that you should only move on to have visual identity work carried out for you once you have secured the rights to the name on which the brand will be developed. Also, incidentally, it is never enough to start using a name just because you secure the .com domain.
8.That if you’re planning on selling the business to someone who is unlikely to want to use the brand you build it means you don’t need to worry about creating a unique brand name and protecting it in the meantime.
The purpose of a name and its role in business is to stand out and protect you against competitor actions that are very likely to arise if your business succeeds. Choosing a distinctive name that can uniquely belong to you and securing rights to it by registering it as a trademark is how you protect the business against common ways of copying successful businesses. These threats can and do arise for businesses. It is not just about whether you want to have a brand.
Trademarks will enable you to stave off copyists. Copying is one of the realities of business life to expect – because others will try to steal market share from those who are successful. When choosing names, people often are purely focused on whether their name communicates what it is that the business offers, what services it carries out and the like – but this ignores the branding aspect – the importance of being distinctive and standing out. You cannot stand out with a generic name. If you want to communicate what the business does, then you can do that in your tagline and communications. Choose a distinctive name, and do not worry too much about trying to use it to communicate what the business does.