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A company’s intellectual property (IP), including trade marks, design rights, and even copyrighted materials, is often an integral element of its marketing campaign. As these campaigns become increasingly available online and more widely used, it is now easier for you to accidentally infringe on another business’ IP. It is important for you to understand what images are and are not usable to avoid facing legal action. This article will provide tips to prevent you from committing IP infringement and explain the consequences of doing so.
1. Understand the Different Types of Intellectual Property
IP refers to the legal rights safeguarding the products of creative thought. There are various forms of IP, such as trade marks, patents, or copyright, and you should consider aspects of your business that may need protection. By understanding the differences between these, you not only protect your own IP but avoid infringing on others’ rights.
Notably, IP laws can vary across countries, so international businesses should take these differences into account when expanding globally.
2. Conduct Online Searches for Similar Materials
You should first perform online searches for similar materials via portals such as:
- Google;
- specific content databases (e.g. Flickr);
- content-hosting websites (e.g. Getty); and
- official IP databases, like the Australian Trade Mark Search on IP Australia.
Conducting online searches will allow you to obtain the appropriate permissions for source material that others already own. This is a particularly important step to ensure you are not acting unlawfully.
For instance, the Staffordshire Church was required to pay £6,000 to Getty after using the company’s images without paying for it. Using the image without infringement would have involved Getty granting the church rights to use the images in exchange for a fee. This is also known as a licence. It is important that you read the terms that attach to your licence because they dictate how exactly you can use the image. For example, the licence may restrict how many times you can use the image, or it may allow unlimited re-use. If you are designing a marketing campaign, it is essential that you check who owns the material that you plan to use and seek appropriate clearances for its use.
Continue reading this article below the form3. Maintain Accurate Records of Your Intellectual Property
Keeping accurate records of your IP is also important if you want to safeguard yourself from claims that you have infringed on another’s IP rights. Records can demonstrate your creative process and are crucial evidence in answering infringement claims.
Innocent Infringement
If you can show that innocent infringement occurred, you do not pay damages for copyright infringement. Innocent infringement occurs when:
- a copyright holder can establish infringement; but
- there was no common-sense reason for the infringer to suspect that they were violating someone else’s copyright.
You did not infringe innocently if you simply infringed without realising. You must show that you took steps to investigate and research who the copyright holder was.
There are still, however, consequences for innocently infringing another’s copyright. Courts may still require you to pay the copyright owner an “account of profits”, which deprives you of the profit you may have made off of using the image. The courts may also consider if you should pay the licence fee that should have been paid to use the image.
Continuing the example, if Staffordshire Church had been able to establish an innocent infringement defence against Getty Images’ infringement claim, they would have been liable not for £6,000 but for only the original licensing fee. This likely would have been a minimal amount under £20.
4. Educate Your Employees
If you are working with employees who are unfamiliar with IP law, it is advisable to provide them with a basic introduction to IP rights. This includes freelancers, volunteers, contractors and in-house employees. Although this might seem time-consuming and costly, it can save you significant time, effort and money in the long run. If your employees have a sound understanding of IP law, they are less likely to infringe another business’ IP rights, decreasing the risk of legal action against you.
For example, had the volunteer at the Staffordshire church known to check the source of the images and their re-use permissions, the church might have avoided entering into a stressful conflict with Getty Images.
5. Source Images via the Creative Commons
In addition to conducting thorough research, maintaining accurate records and educating your employees, you could consider sourcing your images via the Creative Commons.
The Creative Commons is an organisation that provides copyright owners with free licences. This allows creators to authorise others to share and reuse their work, free of charge and legally. It hosts over 2.5 billion licensed works across its associated platforms.
To use the Creative Commons search function, enter keywords related to the images you are looking for and browse until you find something suitable. You can also narrow your search by searching within a pool of images owned by specific content hosts, such as Flickr or Pixabay.
6. Consult with Legal Professionals
Navigating IP law can be challenging, as it can differ greatly depending on your location. To ensure your business complies fully with IP laws and avoids infringement, you should seek guidance from legal experts who specialise in IP. Consulting with experienced lawyers can help you navigate the complexities of IP law, mitigate risks, protect your IP, and make informed decisions that benefit your business’s long-term success. Legal professional advice ensures that your business operates within the boundaries of IP laws.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Key Takeaways
IP is becoming a growing part of all businesses’ marketing and promotional campaigns. Though protecting your own IP is important, you should be aware of how you may infringe another business’ IP. To minimise such risk, ensure you:
- understand the different types of IP;
- conduct online searches for existing similar materials;
- maintain accurate records of your IP;
- educate your employees about IP rights and law;
- source materials from licensing sites such as the Creative Commons; and
- seek advice from legal professionals.
If you would like assistance regarding IP infringement mitigation, contact our experienced intellectual property lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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