Aside from intellectual property (IP) considerations around brand names, packaging, recipes and more, brewery businesses must ensure that they do not fall foul of copyright restrictions. This is especially true when it comes to logos and websites to avoid unexpected legal costs and maximise the value of their IP assets. Here, IP expert Sara Ludlam highlights some key copyright concerns for breweries and how to stay protected.
What is copyright and when does it subsist?
Copyright is an IP right that arises automatically when an original work is created by a qualifying person in a relevant country. Most countries in the world are signatories to an international convention that recognises and protects copyright works.
Brewery businesses are likely to use 2D artworks, such as logos, photographs and graphics, on beer bottles, taps, websites and other marketing and packaging materials. Any original text (and its formatting) on a website could also fall under copyright protection.
The fact that copyright arises automatically when an original work is created means that you usually don’t need to register it. However, certain markets (like the US and China) have specific copyright registers that you may want to use.
While there is no copyright register in the UK, you should make it clear that a copyright work exists by identifying it with the copyright notice © and stating the date on which the work was created and who owns it. For example, as a Brabners employee, the copyright notice for this article could read “© Brabners 2023”.
Below are five key areas that can typically cause copyright issues for businesses.
- Do you really own your logo?
As a brewery, you probably use at least one logo for your business and beverages. Yet even if you paid for the logo to be designed, you don’t own it if there is no written record of the designer (or artist) transferring the copyright in the logo to you. Instead, all you have is a licence to use it.
This means that if you’re using a logo designed by someone who isn’t an employee of your business, you must ensure that you have a written record of the designer transferring ownership of the copyright (and any other IP rights) to the business (or to you). This is usually done through an ‘assignment’.
If your employee created the logo (and such work falls within their job description), then the company will automatically own any copyright in the work. If there is any doubt about whether the designer is an employee, it’s best to get an assignment just to be on the safe side.
- Records
The second potential problem is that the lack of any registration means that you have no evidence of the date on which the copyright work was created, who created it and that it’s an original work.
Therefore, when an employee creates a copyright work, you should:
- Keep a copy of the employee’s employment contract, which should show their dates of employment.
- Keep a copy of any preparatory works to show that the work is original (‘original’, in the context of copyright works, means ‘not copied’). Preferably, these should be dated.
- Post a copy of the work to yourself by recorded delivery, with a clear notice on the envelope that it’s not to be opened except by a judge in a copyright infringement claim. While this one sounds a bit ‘Heath Robinson’, a court will accept it as proof of the date of creation.
If the copyright work was created by a third party (i.e., not an employee of the business), then you must ensure that you have an assignment.
An assignment should:
- be a written document
- be signed by the designer
- identify the work
- identify the consideration paid for the work
- include a statement that the designer didn’t copy it and believes it to be original.
- Alert competitors to your rights
If a competitor uses your copyright work without permission, you would normally expect to be able to stop them and recover damages for their unauthorised use. However, the innocent infringer’ defence means that you cannot claim damages for any period of time during which the infringer was unaware that the work they copied was protected by copyright. This is why it’s important to correctly use the copyright notice next to all publications of your work.
- Double check your dates
When advertising that your work is protected by copyright, you should also make sure to refer to the correct date, which tells your competitors when the work was created. If they can show that their use pre-dates yours, then not only can you not stop them from using a similar or identical work, but they may also end up accusing you of infringement.
Websites are likely to feature a range of dates as the content will have been created over multiple years. That’s why you see notices like ‘2018-2023 © Brabners’.
- Avoid using other people’s images (unless you have a licence)
If your employee or contractor has created a logo or other copyright work for you, it’s critical that they haven’t copied all or a substantial part of their design from someone else. (Substantial part does not necessarily mean a large part! It could mean a small part which is an important element.)
When it comes to copying another person’s original work, there is no such thing as ‘in the public domain’. Certain copyright works, photographs, logos and more are on the internet and may be marked as ‘open source’ or ‘free to use for non-commercial purposes’ — but this doesn’t usually mean that your use of those works is without limits. It is very rare for a ‘free’ image to be freely available for commercial use.
Copyright in literary works and images can last for up to 70 years from the end of the year of the death of the author/designer/photographer. So, if you have images on your website that you don’t have a licence for, take them down immediately.
Copying and pasting is never acceptable unless you have checked out any licence arrangements (whether open source or otherwise) and kept a copy of the licence that evidences your right to use the work in your business.
