What happens when new logos go wrong?

Michelle Ward outlines some copyright rules.

The Olympics branding is iconic and well known. And each host city additionally creates its own branding for promoting their event. London 2012 produced branding that was vibrant, but perhaps not to everyone’s taste, and Rio, not surprisingly, produced a colourful image to fit with its flamboyant style. Tokyo is hosting the 2020 Olympics and, while their logo has not been as funky or flamboyant as their predecessors, they have found themselves in the midst of controversy.

The start of September 2015 saw an embarrassed Tokyo 2020 Organising Committee withdraw and abandon their recently released logos.

Why?

Because there have been claims that the logo is a copy of another work. While the claims were originally rebutted by the organisers, there quickly followed news of withdrawal, amid reports that the designer had previously admitted copying online material.

Inspiration or copying – where do you draw the line on logos?

So just where do designers stand given that existing material is often used for inspiration? What precautions can businesses take when launching a new brand or logo?

All designers have to start somewhere and so it is not an uncommon practice for existing material in the field to be used to ‘inspire’ a new design, taking into account current themes and modern styles that fit the particular target audience and market sector.

But the problem is, where does ‘inspiration’ stop and ‘copying’ start?

Well, the first and most fundamental rule is don’t copy. In the UK, copyright is an automatic right that comes into existence at the point a work is created. There is no need to register the existence of the right and, since in general copyright will run for the life of the creator plus 70 years, it is not short-lived.

If the entirety of an existing work is taken then it is not too difficult to understand that there is a copyright issue there. And here is probably a good point to mention that just because something is on the internet it does not mean that it is copyright free or ‘free to use’. And even if you purchase licences for existing works, the rights to use or adapt will be extremely limited and will often not extend to incorporation as part of your branding.

The more hazy area tends to be where certain key design elements in existing work are taken and used as the basis for a new design. The law on copyright infringement in the UK refers to the copying of a ‘substantial’ part of a work, but without definition of ‘substantial’. There is of course a reasonable argument that if you have taken the central, dominant, or most distinctive part of an existing design, you will have taken the core of the design and therefore made a ‘substantial’ copy.

In the UK, for a finding of copyright infringement, actual copying has to take place, so it can be a useful defence to be able to demonstrate that a design has been independently created rather than copied. But that also relies on good record keeping throughout the design process. If you commission a third party to produce the design, not only will you not automatically own the copyright in the work they produce, you won’t have control over the design process, but would be liable for any infringement if you use the design in your business.

This creates quite a due diligence burden for businesses, but a few steps put in place at the outset could help to minimise the risk of an expensive and embarrassing withdrawal.

So what should businesses do?

Firstly, don’t copy. If the work is being produced in-house, ensure that you have clearly educated your design team on copyright issues and ensure that they keep clear records relating to what they produce and when, and record the ‘inspiration’ behind the designs so that early unintentional copying can be picked up on. Those records may also be of assistance if there is a challenge, to help demonstrate independent creation rather than copying, and will additionally be useful evidence to demonstrate entitlement to copyright and ownership if you ever have to pursue someone else for copying.

If you engage an outside designer, ask questions. Where did their inspiration come from? And check the written contract to ensure that, as a business, you will own the design at the end of the process.

Also consider trade mark searches. These can be undertaken not just for names but also for logos and, while these may be a little subjective, they can help to highlight potential problems before use is commenced where owners have registered their logos as trade marks.

While these steps will not necessarily completely rule out a complaint, they may help to minimise and manage the risks that businesses face when launching new branding.