Merlie Calvert, Founder of Farillio, a legal startup, shares with us her top tips for building robust legal foundations for your creative business. First up, Intellectual Property.
What is Intellectual Property (IP)?
Intellectual Property is a category of property that is intangible, and that refers to creations of the mind, such as designs, ideas, symbols, names and images. IP can be protected by law to stop others from using your ideas and work as their own. This can be done through copyrights, patents and trademarks.
IP is often the most valuable asset you’ll ever have in your business as a creative entrepreneur. Think of your IP like making an investment – over time, it will generally get increasingly valuable to you and to others. So, make sure you’ve got a really good handle on yours and you know how to protect it.
When you’re looking to stand out from others, strike sales deals, attract great people to work with you (as employers or service providers), take on investment or apply for grant funding, IP will lie at the heart of your credibility and attractiveness to others. It’s absolutely worth taking it seriously and protecting.
What can be protected?
Most IP is easily created (I know it often takes blood, sweat and tears to reach creative perfection –but what I’m talking about here is what’s protectable; even sketches, first drafts and prototypes qualify as IP). And most IP is easily protected, if you start soon enough and you use the right methods.
How can my IP be protected?
The name of your business, any logos, slogans and straplines can be protected using Trademarks. Trademarks legally stop anyone using marks or marks that look or sound similar to yours for the same or similar business activities to yours. You’ll need to register them, and you can do it yourself online, although getting a bit of help first time around can be useful.
Farillio has a great video on how to do this, as well as other helpful guidance to keep legal things straightforward and affordable.
It's important to note that registering a company name at Companies House (if you decide to set up a limited company) and/or buying a domain name for your website will not give you trademark protection, or guarantee you that those names are capable of being protected and monopolised by you. You can have unregistered trademarks, but they are much harder and more expensive to defend and you could find yourself facing an infringement action if someone else goes ahead and registers your mark instead – which you shouldn’t rule out if you’ve started to generate a fab business reputation and someone decides to free-ride off it or pass themselves off as you or your business!
Copyright protects the use of your work once your idea has been physically expressed - it is automatically yours for free and it’s created as soon as you capture an idea or content in some traceable way. You don’t need to register it or take any ‘official’ action. For example, it will cover: your original drawings, sketches, blogs, photos, sound/film/video recordings. Just make sure you keep good records of when you created this material, in case someone later plagiarises it or later on wants to argue your original work is their own.
The simplest (and free) way to do this is to email yourself with an attachment containing the material that you want to protect. Then keep that email very safe! Keep drafts or early drawings and recordings in the same way. You’ll have a nice, date-stamped paper trail then, proving that you are the owner of something original that deserves to be protected. You’ll also have the moral rights to that material – meaning that you have the right to be identified as the original author of it too, no matter how that material is subsequently used (and unless you deliberately and expressly assign that right away at some point in the future). If you’re blogging or producing awesome content and publishing it by other means, a good way to check that nobody has copied your work is to randomly insert chunks of what you’ve written into Google and see whether you get any direct hits.
Design rights are relevant if you’re creating tangible things, like furniture, jewellery, or ceramics, for example. The rights protect the aesthetic qualities of what you’re creating, such as the shape of what you’ve created. Like the other two types of IP, you’ll need to prove that your designs are original and like trademarks, you should ideally protect them by registering them. Again, you can do this yourself, but with designs, it’s definitely worth getting a bit of expert help with some of the elements of the application process. Don't just register your final design, but the drafts and prototypes too. For some items, including jewellery, you might not want to register every design, but you might well want to register key elements of them, especially if you have a signature design that may feature across multiple pieces.
Patents are the other main IP right to know about, but in my experience, they tend to be less relevant for most creative businesses. They protect novel and innovative items of processes, often those involving state of the art tech/science and they should be registered to be protected. They offer great monopoly rights for a limited period of time and there are important commercial trade-offs to be considered when you’re considering registration… not least the fact that every minute detail of your product/process gets published to the world in return for granting you the monopoly right. Some businesses consider that a step too far in benefitting their competitors and prefer to keep their secrets by other means. Expert advice is always advisable where patents are concerned!
- Don’t assume that the IP is yours if you’re commissioned to produce it for someone else! Although there is an argument that if someone commissions you to do creative work for them, you still own your IP, unless you have a contract in place and it expressly states that you do (or that your customer does), this can be a pretty grey area. Don’t take a risk here. Most customers will expect to own the IP in what you create for them, but if there is something you want to hold back, especially if it’s part of your business DNA and wider service proposition, make sure the contract explains what’s included and what’s not very clearly.
- Get your IP working for you! If you’re creating lots of amazing stuff and you’ve protected your rights in it, there’s nothing to stop you from selling or licensing products or services using your IP. For example, if you’ve got drawings or photos sitting around and you’re not using them, put them up on a photography site or on Etsy or a craft site, and see if you can get the earning some money for you. Every bit helps… and it may be a good way to get what you do noticed by some great designers and agencies too, not to mention new customers for any wider skills and offerings that you might have. Do this right, and you never lose your rights in what you’ve created and you can always use that content too/later on.