IP in creative industries – protecting your creativity and creative work

Intellectual property rights ultimately exist to encourage and protect creativity and innovation. There is almost a Faustian bargain between the creative, who releases the work to the world and the government which provides at least with copyright and designs a limited period of exclusivity in the use of the work. It is  important to be aware of such IP rights at an early stage in order to reap the benefits of protection and on the flip side, avoid infringing the rights of others. The following post sets out IP tips for those especially in creative industries.

There are different types of IP that may be relevant to your business. Trade marks protect any aspect of a brand, usually brand names and logos. Design rights protect the look of a product or its packaging, so tend to be most relevant in product design. Copyright protects original work which tends to be literary, artistic, musical or dramatic works. This includes written text like books and blog posts, and art including films, videos and graphic design. An original work that you have created will likely be protected by copyright.

Copyright

Because copyright does not need to be registered, rights are therefore created instantly and for free. It may help protect your work and warn others off copying if you mark it with a copyright notice, including the © symbol, your name, and the year in which it was created.

The automatic position is that whoever creates the copyrighted work will be the first owner of the copyright in it, unless the work was created under a contract of employment in which case the copyright will be owned by the employer in the first instance. For example, if a client hires a graphic designer to create a logo, the graphic designer or their design agency would be the owner of the copyright in the design of the logo, unless the copyright is expressly assigned to the client. Most design agencies’ standard terms and conditions will contain a clause dealing with the ownership of copyright but this is something to be aware of when onboarding clients.

This also means that it’s not always clear who owns the copyright in a work, as there isn’t a searchable database. Caution should be exercised when using images found online for example, which could be subject to copyright protection that may not be stated. We’d advise using stock image sites such as Getty Images which have the right to licence certain works for a fee, and not simply use online images for your own purposes. Copyright also lasts for a fairly long period of time – in the UK this is 70 years after the death of the author – after which the work enters the public domain.

It’s also wise to keep records relating to the creation of your work and keeping digital records backed up and dated. This is so you can prove ownership of copyright in the work should you need to take action against copiers.

Generative AI and IP

The rise in AI technology will also bring about changes for creative industries, particularly generative AI that can generate text and images with a few prompts but designers should be cautious when using these from a legal standpoint. The ownership of works created by Generative AI are presently subject to a series of legal cases across the globe. Although some have argued that AI applications should be even a ‘legal personality’ not unlike a company, generally this has been resisted, as well as placing obligations on AI applications, it could give them rights. For example, a US court recently ruled that copyright can only be authored by humans, meaning an AI-generated image created in this case was not subject to any copyright whatsoever, owned by the AI or the owner of the tool. If the UK follows their lead, designers may not be able to claim the IP rights in artwork they generated using an AI tool.

There is also a risk that designers using AI tools risk infringing the rights of others, as there may be no guarantee that the AI is creating original content. If it is just collating text and images from the web, the work created by the tool could be subject to copyright protection and not free to use yourself.

This is still being determined but as with any works, it may be best to avoid cutting and pasting text from text generators like Chat GPT, as this risks infringing copyright in the original work gathered.

Trade mark registration

Trade marks can be registered in the UK and we advise to do so for stronger rights. A trade mark registration provides the exclusive rights to use the mark (i.e. the name or logo) in relation the goods and services for which it’s registered, or anything confusingly similar.

For agencies creating brands, it is also advisable to search trade mark registers in the countries of interest to get an idea as to whether the brand name is available to use, which is something a trade mark attorney can assist with. If the same or similar name has already been registered, for the same or similar goods and services, that could be a risk to the client. The rights in trade mark registrations also cover anything confusingly similar, so variations in a name could still be a risk.

As trade mark attorneys and IP specialists, HGF can help to navigate some of the above issues, particularly brand clearance and registration and copyright ownership. If you need any assistance, contact us to see how we can assist.