Busy creative professionals like graphic artists, web designers and copywriters will know how much time and effort goes into working on a new brand for a client. Once those creative juices start flowing, the rush of inspiration often leaves little room to consider possible legal ramifications and financial consequences. These are seen as mind-numbing technicalities, better left to those ‘boring’ non-creative types… like lawyers.
However, even the most carefree personalities still run (or work for) a business and have rights and responsibilities when it comes to Intellectual Property. Understanding the basics of copyright and trademarking laws can help you avoid getting yourself (or your clients) into trouble down the track.
Here are a few quick legal tips to cover your artistic backside and ensure you can get back to doing the creative stuff you love!
1. Sort out your business structure at the start
This is most often neglected by sole traders or start-ups. Not many people want to go to such effort and expense in the early stages before they’re sure if the business will succeed, but you should start out how you mean to finish. If your plan is to grow, then plan to grow.
Make sure you also understand whether you’re considered an employee or a contractor, as both have different legal and tax obligations. Judy from the ATO does a bang up job of explaining the differences if you’re unsure.
The ATO website also has this nifty online decision tool for employers.
2. Understand how trademarking actually works
Creating the most glorious and appealing brand ever for your new client, only to find out that there is already a hamburger restaurant called McDonald’s is not a job well done.
Whether or not someone else is already using the brand is only one obstacle to exclusive ownership. The other, lesser known, is whether or not it can be owned at all.
For example, ‘Best Designers’ might seem like an appropriate name for the Best Designers, but it is also too generic and descriptive to trademark. If another Best Designers decided to set up shop in the next suburb, your power to stop them would be severely diminished.
3. Be clear about ownership
As free-spirited as creative types tend to be, it’s important to make sure you’re not giving away your work for free. Clearly state in your contract who owns what and when any transfer of ownership will occur to help avoid pay disputes or unscrupulous characters taking advantage of you.
Most contracted creatives who are paid to generate something (such as a logo design) probably assume that the client owns the rights to that creation at the end of the project. However, a transfer of copyright is actually required to be submitted in writing and is an often forgotten rule that can lead to disputes or angst down the track.
Also ask yourself whether there are some items within your creation that neither party will own, such as creative commons images. If so, make sure your client is aware of this so they don’t get a shock if they see someone else using them.
4. Enforce your rights
The best form of advertising for your business or creative services is potential customers seeing your work and wanting to get in on the action. As a creator you retain the moral attribution rights to your work, even if you no longer own the copyright, so don’t be afraid to enforce them!
Ensure your clients (or other forums) are acknowledging your work when it is published or re-published. These rights do exist, do not diminish over time, and cannot be contracted out of, so don’t let anyone tell you otherwise!
Similarly, make sure you also set out in your Terms and Conditions if you want to be able to reuse part of your creation (such as photographs) or include them in your own promotional material or portfolio.
5. Be proactive
Seek legal advice sooner rather than later. Partner with a law firm so that when you come up with a fantastic name or logo design, you can make certain that it is trademark-able before investing your valuable time and passion into the project.
We also highly recommend you encourage your clients to seek assistance in this regard as well. You definitely do not want to take on the potential liability of providing legal advice such as whether or not someone is able to trademark their business name or logo.
At Sajen we understand that not everyone can afford the traditional by-the-minute rates most lawyers charge, especially if you’re just starting out. The Sajen Accord is a unique service that was created with independent contractors and small to medium business owners in mind. It provides unlimited access to expert business and legal advice for a fixed fee, so you can check on your trademarks or have a copyright query answered at any time without stressing about the bill.
If you’re self-employed you might also like our post on Looking After Your Health When Working From Home.