Copyright, trademark and your intellectual property rights can be confusing for anyone new to design, either as a designer or a client. A practical guide to who owns what, what you can protect, how you can protect it, and what to do when someone copies your logo.
Fair notice: IANAL (I Am Not A Lawyer) nor am I your lawyer, so whatever you read is worth exactly what you paid for it. When it comes to copyright and trademark skirmishes, you should consult with someone who is. Let’s begin this lengthy, two-part feature, with a case study of what we’re about to talk about. Take a look at our little crook illustration at the top of this page. That was done up at our studio years ago, and used in an earlier blog post about copyright law. Now let’s take a gander at Google image search to see how many times this illustration has been used on other people’s blogs and websites. Every single one of those uses is unauthorized, without permission and without credit that we actually made it. Most of the articles that feature our little copyright bandit are about copyright laws and why it’s a bad thing to copy stuff without permission. Other than showing us that irony is dead, it also illustrates what I’m about to say. And it is this..
There’s nothing you can do to stop people copying your logo.
Hate to break it to you kids, but if you put something on the internet, be it a logo, photograph, illustration or even a blog post, someone will eventually copy it. Probably more than once too. That’s just the way it is, and the very nature of this beast we call the web. Sometimes it’s done as a homage to the original and comes with something like this:
“I saw this wonderful logo at so-and-so’s site.”
Those kind of knock-offs often involve a link to the source, the very essence of how the Internet works. Don’t fret too much when this happens. Best case, it will help get your name out there and links to your site. They’re probably protected too, under “copyright fair use” – we’ll discuss that in a bit – so save yourself the legal consult fees or the time to file a DMCA.
Once your art has been placed on someone else’s site, it will get copied from there too, an ever-expanding vortex of copying until your image is all over the internet, some with attrition, some without. There’s there’s not much you can do about this anyway, unless you have unlimited time to search and destroy, or an army of lawyers that can trawl blogs and websites on your behalf (like the major stock photo agencies do and have, so you should probably not count on their understanding or largess.) If it involves a good-natured hat tip to the original, my advice is simple – enjoy the free marketing. Until that is, somebody tries to sell the image or otherwise profit from it, a different kettle of fish entirely. We’ll get to that in a minute.
Use without attribution.
In my experience, these guys are the biggest pain in the posterior. They help themselves to logos, artwork, photographs or illustrations without so much as a “how ya do?” grabbing images from your website for blog eye-candy without a link or credit to you, the creator. Personally, I have no patience in these cases, and send them one polite but terse e-mail demanding they remove – I don’t care if they respond back with an offer to add a link or credit, but that’s your call – and if they ignore the message (they usually do) then it’s a DMCA to their host or provider. In our industry, I coined the name for this practice s few years back – Logo Raiding – and while it peaked shortly after that, it still goes on with monotonous regularity today. Trouble is, keeping on top of this stuff requires constant trolling of the internet for unauthorized use (as our copyright bandit illustrates, once an image hits one place, it will multiply quickly) and playing whack-a-mole gets old really fast. Bottom line, if you really, really don’t want an image copied, don’t put it on a website.
The unrepentant copycat.
While there’s some debate whether or not this is actually theft, in the graphic design sphere, these copyright thieves are a plague. Not content to use your work as eye-candy, they’ll nick images from your site – be they logos or brand identity art – repackage it as theirs and pass it off to their clients as original work. While avoiding tub-thumping against design contests in general (again) or logo design contests in specific (again) let’s just say plagiarism spurred on to flood contests with quickie entries is common. More accurately, the amount of stuff that’s been cribbed, copied and bootlegged from our clients, and our studio, to enter onto commercial contest sites would blow your ever-loving minds. They’ll admit that “it’s rare, but it happens.” Yes, it does happen. It’s anything but rare. In any case, there will come a time when someone tries to pass off your logo, or your client’s logo, as theirs to someone else. Before that happens, you need to know exactly what copyright is, how it differs from trademark and how you can stop that miserable bastard who stole your stuff.
Copyright, trademarks & logos.
At first blush the difference between trademark and copyright should be simple to understand and when it comes to legal matters, simple equates to less-expensive. Copyright covers creative works of expression made real – think paintings, drawings, books, music, sculptures, etc. Trademark usually applies to trade names, slogans, taglines and literal items used to identify a commercial entity in the marketplace. Patent applies to ideas, concepts and inventions. Copyright is automatic, trademark can be claimed (but it takes registration to lock down protection) and patents definitely need registration before they see light of day.
Sure, except when it comes to logos which are more complicated and unfortunately, if simple was less-expensive in the legal department, complex is the exact opposite. Logos can straddle both areas of intellectual property law – trademark and copyright – depending on how you approach yours, how serious you are about your brand identity and how much money you want to spend to protect it. This articles gets a little murkier from here on in, but I’ll try to keep it as practical as possible.
Copyright and logos.
Copyright is simple because it’s automatic. You create something – a picture, photograph or in the case of logos, symbols – you own it, the copyright exists and will for many years after you croak. You have to assign the copyright for anyone else to use it, you don’t have to put a “c” in a circle to claim it and you don’t have to register it with the feds (though doing so is a good idea because it time-stamps the creation date, cuts through the “how full of shit am I” part of any court case, and allows you to sue for punitive damages on top of an injunction.)
If you’ve hired a designer to create a logo for you, make sure that part of your contract involves a copyright transfer. If you’re a designer working on a logo for a client, make sure you give them a copyright transfer but – and this is key – make sure that transfer involves you retaining a limited license to the work for restricted usage and display. Think your portfolio or as in our case, our logo design gallery. Otherwise, it might be argued that you’re infringing on your client’s copyright when you display it on your website, even though you designed the logo, and they hired you to do so.
Designing logos at your day job.
If you work for a design studio, and even though you created the work, the copyright probably belongs to them. You’re working on their gear, on their dime, and it’s usually understood the stuff you design for them is theirs, unless you have a piece of paper that says it isn’t. When it comes to using their artwork on your portfolio, probably best to ask. While they could legally ask you to take their stuff down from your portfolio because it’s their copyright, courts have generally taken a grim view of employers that try to stop people from earning a living, so it could go either way if push came to shove. But remember, complex is always costly.
What logos qualify for copyright protection?
You’ll often hear, from people who should know better, that “simple” or “generic” logos don’t qualify for copyright protection. Not true. A logo design would have to be breathtakingly simple and stupidly nondescript to not be protectable (and in that case, it’s being used a million times over anyway.) Almost any design can be protected by copyright, but here’s the rub – if it’s very similar to other existing copyrights, sorting out who did what first becomes confusing. Confusing is always expensive.
Trademarks and logos.
Trademarks protect trade names and items – for our purposes symbols and icons – that identity a commercial enterprise in the marketplace. A trademark must be used in commerce, or you lose any protections you might have but is more absolute than copyright – a conflicting name or logo being “similar” to the original mark is enough, if such similarities would lead to “confusion” in the marketplace. In essence, you could use an apple logo for your Apple Cleaning Service, but use it for anything to do with computers, music, phones and a host of other stuff, the Cupertino corporation would be over you like white on rice. To give you idea of what you can’t do with either an apple logo, or the apple word check out this page of Apple trademarks. It’s many monitors deep so probably best to avoid anything to do with apples as a matter of course.
Laying claim to your trademark.
In terms of claiming trademark on a word mark or design, you don’t have to register it with the USPTO. You can slap a TM on it and Bob, as they say, is your Uncle. If you want to put a little R in a circle – that stands for registered trademark – you’ll need to officially apply but that’s a lengthy process – your logo has to be published for objection – and can cost a pretty penny. There are websites that offer trademark registration services for as little as $99 plus costs. The expense is in the “plus costs” because that’s where the big filing fees lie. Why should you bother? While slapping a TM on a logo scares off 98% of the people who might knock you off, you’ve just advertised to the other 2% that you don’t actually have any papers.
Nuts and bolts.
Copyright doesn’t cover such nebulous things as colors (which are everybody’s property in theory) whereas trademark can actually protect certain colors in the marketplace. T-Mobile magenta, UPS brown etc. Trademark can also cover things like sounds (whereas music would be covered under copyright.)
Shorter version of all this?
Copyright is supposed to prevent unlicensed copying of creative works. Trademarks are supposed to prevent confusion in the marketplace, so that consumers always know what they’re buying and from whom.
If someone was to pinch your trademarked logo for their own company, you would shut them down through a trademark infringement suit. If they were to take your logo and put it on a T-shirt for sale, you would go after them under copyright law too. You own the right to copy your own trademark. They don’t. And if you had registered your copyright with the feds you could also sue them for damages. And any profits they made selling those damned shirts.
You’ve probably heard of a thing called “Fair Use.” While it can be used as a defense against an infringement suit, it does not mean you can take anything from the internet and use it as you see fit. Let’s start off by figuring out what “Fair Use” actually is:
“Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.”
The government realized that by using copyright laws and ownership rights, larger corporations with deep pockets could quash criticism – codified under The First Amendment and free speech – of lesser well-heeled adversaries, so there are certain exceptions to the absolutism of copyright. Fair use let’s you use copyrighted material for things such as commentary, criticism, news reporting, research, teaching, library archiving and scholarship. In the context of this blog I can feature other people’s logos and artwork for critique or review and that would (probably) be okay. I qualify that with “probably” because fair use has no real barometer of what it is or isn’t, and it’s actually a valid defense against claims (and lawsuits) of copyright infringement, not a privilege or right. Don’t believe that “fair use” is a magic umbrella that protects you from unauthorized use – or accept it as an absolute excuse for someone ripping you off – because it’s neither.
For designers: some tips on putting logos on a website.
Later on in the week, we’ll walk you through the DMCA, takedown notices and offer up a template that we’ve used successfully many times over. Having said that, it’s always better to take steps to avoid getting knocked off in the first place. Here’s some tips to tamp down copying of your design goodies:
✓ The smaller the better. It makes auto-tracing problematic and hand-rendering difficult. Trouble is, this flies in the face of big websites, high-resolution monitors and the image sizing flexibility required by mobile-friendly sites.
✓ If you put logos and brand identity art on a website do not, if at all possible, leave the background transparency turned on. Doing so won’t stop Logo Raiders entirely, but it puts one more step in their knock-off process, and when it’s “dirty deeds, done right quick” that’s always helpful. Besides, no point in doing half their work for them. One of the reasons the little fella upstairs became so popular was because I inadvertently published him on a transparent background and he can be added to anything. Oh yeah, colored backgrounds might help dissuade copycatters too, but that can mess up presentation, especially if you’re running pages with loads of logos on it.
✓ Watermarks can be helpful, but they’re certainly not a stop gap (anyone with a copy of Photoshop or Illustrator can get around them PDQ) but they put another level of pain-in-the-ass-to-copy in front of a copycat. Trouble is, they also wreck the aesthetics of your display, so you’ll have to weigh the pros and cons.
✓ Don’t put WIP (Work in Progress) images anywhere (sorry Dribbble – but we are fans and have an account.) There’s nothing to stop someone nicking that work, Frankensteining it into a derivative, and then claiming copyright before your client gets the paperwork. Sure, you can probably prove you designed it first, but it’s murky and complex to do so. Complex always equals expensive.
✓ Don’t put client work on your website until you’re sure they’ve protected it or they’re using it extensively. While their logo might get knocked off from their site (probably will) it would be awful if it got knocked off from yours before they managed to lock it down. Most of the company logos in our archives are older, well established or companies that (sadly) have shuttered. I’m not willing to take risks with other people’s IP.
✓ Have a private “by invite” portfolio of newer and unreleased design work. This is obviously the most effective but completely defeats the purpose of having a design website in the first place. The number of potential clients that will take the time to request access to your work, wait for a response, and then go back to your site is negligible. Besides, you’ll have to have some examples to whet their appetite in the first place.
✓ Put your logos on object mock-ups. This distorts the designs – making them harder to knock-off – is relatively easy to do using Photoshop smart objects, there’s lots of freebies and while I’m a fan of logos in their pure form, it’s probably the route I’ll go with any major update of our portfolio.
✓ If you’re going to publish a PDF of logos – in fact, an e-book of anything – for download from your site, insert a very complete copyright notice on the second page (in real life, the inside jacket.) It has to be “live type” (not outlined fonts.) Eventually, people will download your book and put them on sharing sites where they get the benefit, not you, even though getting people to your site is half the reason for giving away the book in the first place. Here’s the thing – those sites generally scan through the text of the book to create a synopsis, and by placing your copyright notice up-front, that’ll be the first thing that gets published on the download page it’s featured on. Fait accompli evidence when you ask them to take it down.
And if despite all this, someone still knocks your logo off, it may be easier to just buy it back.