guest post from Jacqui Pryor, the director of Mark My Words Trademark Services.
I am really pleased to have partnered with Build a Little Biz and look forward to contributing posts on, around and about Intellectual Property matters. This post will shed some light on the common question about using stock images, clipart and the like within your business logo.
For the most part, Copyright and Trademarks protect different things and it’s important to understand that they are not the same. A trademark is a sign you use to ‘brand’ your products and/or services; to distinguish them from your competitors. Most often a trademark is a brand name, logo, slogan or tagline or some combination of these things. Despite popular belief a brand name is not copyright. For more about trademarks, read our recent Trademarks 101 post.
Copyright on the other hand protects ‘original works’ and is an automatic right, granted to the author or creator of those original works. The term works under copyright extends to literary works (books, lyrics, poems and even computer programming code), artistic works (paintings, sculptures, photographs and handmade articles) and dramatic works (plays, television and film productions) amongst other things. If you created it, the rule of thumb is that you own it – and, don’t have to formally register it.
There have been cases where a person has created a ‘logo’ and successfully argued that it was artistic enough to count as an artistic work covered by copyright. These arguments were required because they didn’t register their logos as trademarks, making it more difficult to prove an infringement case. As there is no formal registration for copyrights it can be difficult to prove ownership, and at times (especially when discussing a logo) very difficult and very costly to take action.
So, tip # 1 is that if you create a logo do not rely on copyright to protect it, register it as a trademark.
I am often asked about using clipart images, or other ‘free’ images found on the Internet within logos and overall I do not encourage use of an image you don’t create or have designed for you.
Tip # 2 make sure you own the copyright of your logo
(If you have a logo designed for you ensure your artist confirms that any copyright or other right in the logo is transferred to your ownership. A contracted graphic designer will usually own the copyright unless expressly stated otherwise!).
So, why shouldn’t you use free images to create your logo?
- First and foremost, I believe that your business brand and logo should be unique and should represent your business. Using a free image or a clipart image or similar runs the risk of others using the same image/s to brand their own business – this could lead to confusion, but also see you lacking in a distinctive and unique brand position for your business.
- Unless the copyright of the image is assigned to you, which won’t happen with clipart or other online images then you can never really own it. Incorporating one of these images into your logo would therefore mean you never really own your own logo. This to me is too risky and you should own your own brands!
- Whilst registering your logo as a trademark gives you the right to use that logo for particular goods/services, if you were to register a logo that incorporated another person’s copyright you could end up still with action against you for copyright infringement, and could ultimately lose any ability to use that logo for your business.
Tip # 3 – Read the License Terms of Clip Art and other image sites
These terms will outline how you can and cannot use the images – whether you can use the images commercially or if they are for personal use only and also whether you need to attribute ownership to the copyright holder.
Also note that if you pay for an image from a stock photo website you are not purchasing that image to ‘make it yours’ – you are simply paying for a right to use someone else’s copyright, not to own it. Even if you find an image provider that allows you to use their images commercially, there will still be restrictions on that use, which could include agreement that you won’t use the image in a corporate logo, or that you will only use with an attribution back to the owner of the copyright and that you agree not to seek any trademark registration that uses their image.
Jacqui Pryor is the director of Mark My Words Trademark Services. Jacqui has 13 years of experience in Australian and International trademark matters and her company aims to provide affordable, friendly and reliable services to small businesses in an area often assumed reserved for big business. Click here to receive your free trademark search.