With re-gramming, reposting, remixing, and retweeting, it has become increasingly easy to use or display someone else’s work. Does that make it ok? Not necessarily. When you use another company’s logo on your website, you may be infringing their intellectual property rights. However, there are certain situations that allow the use of someone else’s work. Let’s take a look at the circumstances that give rise to such a right.
What is Someone Else’s Property?
It is easy to identify when physical property belongs to someone else and is not yours to take. It is harder to determine the ownership of intellectual property (IP). IP refers to a creation of the mind and can range from written material to images and logos. A business’ logo is their intellectual property. The question is under which IP category does it fall. A logo can be registered as a trade mark, but in certain circumstances, it may even have copyright protection.
What is it?
Copyright is an automatic right that exists in certain original works, such as books, drawings, music, performances and images. This includes the right to reproduce, publish or use the works online. It does not matter whether they use the © symbol or not, the owner still has the exclusive rights to their work. In other words, using someone else’s logo on your website may be infringing on their copyright.
The 10% Myth
Contrary to public belief, there is no blanket 10% rule that allows copying material if you change it by more than 10%. The test is whether you have reproduced a ‘substantial’ part of the material. Therefore, it is not the quantity of the reproduction, but the quality that is taken into account when determining copyright infringement.
The ‘Fair Dealing’ Exception
However, if your intended use falls under the fair dealing exception, it may not be considered infringement. Under the Copyright Act, Australian law permits the use of copyright material for:
- research and study;
- review and criticism;
- parody and satire;
- reporting the news; and
- giving professional legal advice.
In addition to the purpose of use, the use must also be ‘fair’ in the circumstances. For example, when reporting the news, you should only use enough as to make the point, rather than reproducing unnecessary parts.
If your intended use does not fall under fair dealing, you will need to obtain permission to legally use the logo.
How to Recognise a Trade Mark
A trade mark is a sign that distinguishes the goods and services of one business from another’s. It may be a name, a logo, a slogan, or even a smell or sound, as long as it is unique and original. Unlike copyright, a trade mark requires official registration to obtain ownership. Sometimes, it can be easy to tell whether something has been trademarked if the ® symbol is used. However, a trade mark owner does not need to use the ® symbol. Therefore, you should check the trade mark register before assuming that a logo is not a trade mark.
If you have identified that the logo is a registered trademark, you will often need to seek the owner’s permission before using it on your website. Fortunately, if you’re using their logo to promote their brand, they may be more than happy to permit you. If you operate a marketplace, permission to use the service provider’s intellectual property, such as their logo, should be included in the terms and conditions. Unfortunately, if you are unable to obtain permission from the owner, you must omit from using their logo, despite any good intentions to use their mark.
What to Do When You Receive Permission
Now that you have obtained permission from the rightful owner, there are several things to think about, including:
- if the business owner is licensing their logo, the rights and restrictions in the licensing agreement;
- if the business owner is assigning all rights to their logo to you, whether you have a well-drafted agreement;
- that the depiction or placement of the logo on your website does not mislead consumers that you are affiliated with a company in a way that you may not be; and
- if you want to change the logo in any way, make sure you have the right to do so.
If you want to use another company’s logo on your website, you should generally assume that the logo is protected intellectual property. Copyright or trade mark will protect most logos. Therefore, the next step is generally to seek permission for using the logo, ideally in writing. If you use another company’s logo to promote their products or services, they will often be happy to grant this permission.
If you need any help with ensuring that you have the right to use another company’s logo, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.
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