#168 How to protect your Intellectual Property as a creative business
Intellectual property (IP) is a term you often hear in the world of creative businesses. I've observed that many business owners have a general understanding of IP but they don’t necessarily comprehend how to protect it effectively. That’s what I’m going to shed light on today so that you can understand what intellectual property means for your creative business and what you need to do to protect it.
What is Intellectual Property?
Simply put, intellectual property refers to your original creations—whether it’s drawings, photographs, your name, or your tagline. For these to be considered your intellectual property, they need to be both original and created by you. Intellectual property fits into four primary categories: Trademarks, Copyright, Patents and Designs.
Trademarks
The term "trademarks" is often misunderstood. Trademarking involves registering a trademark with IP Australia for exclusive use over a name or phrase crucial to your business but it can't be something you just fancy. It has to be capable of being trademarked. For example, if your business name, logo, or tagline is unique and vital to your branding, it might be worth considering trademarking it.
Beyond trademark registration, there are other steps you can take to protect your IP:
Register a Business Name: If a name or phrase is essential to your brand, register it as a business name to prevent others from legally using it.
Register the URL: Secure the relevant domain names associated with your business to ensure no one else can use it.
Document Usage Rights: If you allow third parties to use your intellectual property, make sure the terms in which they are entitled to use it are outlined in your service agreement. Crystal clear clarity is vital here so you can protect what’s rightfully yours.
Copyright
Copyright differs from trademarks because you don’t need to apply to register it in Australia. The Copyright Act automatically protects your original works. Whether you create drawings, photos, logos, or designs, the copyright belongs to you as long as it's your original work.
However, if you want to safeguard your creative work, you need to assert your ownership of your copyright.
Client Agreements: Clearly state in your agreements that you retain copyright over your work and specify the usage rights granted to clients.
Copyright Notices: Place copyright notices on your original works and client deliverables to indicate ownership.
Cease and Desist: If someone infringes on your copyright, a cease and desist letter can be a powerful tool in protecting your rights.
The Rise of AI and IP Protection
Many creatives are curious about using AI in their work. While AI can streamline processes, using it to create work raises questions about originality. Remember, your copyright protects original work. If AI generates part of your creation, it may not be considered entirely original. Always consider this when integrating AI into your creative process as it could impact your legal standing.
Protecting your intellectual property is vital for the growth and sustainability of your business. I hope this episode is helpful to you and that you feel better equipped to protect your original creative work and avoid unnecessary disputes down the track.
Full Transcript:
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[00:00:00] Tracey: Intellectual property is a term that's bandied around quite a lot in creative businesses. And in my experience, most business owners have a vague idea of what it means, sort of, and how it sort of applies to them. But
[00:00:34] the deep level understanding of what it actually is and how to protect it is something that I think is really topical and really important for creative small businesses to understand. So I'm going to dive into All of that in this episode of the podcast, let's start with intellectual property.
[00:00:54] We hear it all the time. What actually is it? Intellectual property relates to your original creations, whether it's drawings, ideas, your name, your tagline. It has to be original. It has to be yours. But when it is, it's created by you and it's your original work.
[00:01:15] That is your intellectual property.think of umbrellas. There are four umbrellas that your intellectual property can sit under. It can sit under trademarks, copyright, patent, or design. Now for this podcast episode, I'm talking to creative small businesses. So think interior designers, photographers, web and graphic designers.
[00:01:40] I'm talking to you. So I'm not going to elaborate any more on patents and designs because that relates to the original works of manufacture and of products such as jewelry or clothes or furniture. So I'm not focusing on patents and design. What I am going to focus on now is trademarks and copyright. I'm going to explain what it is and how they apply.
[00:02:03] And then I'm going to explain how you protect it.
[00:02:07] And the reason I'm going to do that is because as a small business owner, you are putting yourself out there in the world. You're putting your illustrations of your work out into the world to showcase your skill, your craft, to develop your brand and to grow your business. So you're putting your original works out there for all to see.
[00:02:30] And whilst you're doing that for hand on heart, pure reasons, and you're doing it based on trust. So that other people will see it will resonate. It will reach out. We want to work with you or collaborate with you in some way. You're not putting it out there to be copied and you're not putting it out there for people to misuse it and do the wrong thing, but it happens despite our best intentions.
[00:02:54] Those things still happen. So that's why I'm going to talk to you about what you can do. to set yourself up as best you can to protect your intellectual property as a creative small business.
[00:03:07] Let's talk trademarks. Trademarks again is a term that's bandied around so much without people really having a deep and thorough understanding of what it actually is. Trademarking is when you register a trademark with IP Australia for exclusive use over a name or phrase. That's important to your business in a particular class, you can't trademark something just because you want to, it has to be trademarkable, so capable of being trademarked.
[00:03:41] And it's a lot to dive down into here. I'm not going to go through the ins and outs of trademarks. I just want to explain to you what it is, why it's important. So if your business name is important to you. As is the case with a significant number of creative businesses, if your logo, if your tagline is important to you, it's original and descriptive and it relates to you, it may be capable of being trademarked.
[00:04:10] You can't trademark it just because you want to, it has to be capable of being trademarked. But if it is, if you form the view that having exclusive use of that name or that phrase is important to your business. Then we need to think about trademarking. Now, there's legislation in Australia called the Trademarks Act that governs how IP Australia assess trademark applications, what applies, what the consequences are if someone infringes it, all of those things.
[00:04:38] There's legislation that governs this. And I should say I'm talking here about Australia, so I'm not talking about international trademarks. That's a different kettle of fish. This podcast episode is based on Australian law for Australian small businesses, because that's who I support. Australian small businesses in the creative space.
[00:04:58] So trademarking becomes important when you've got something unique in terms of a word, a name, a phrase that you want to protect, that you want to claim exclusivity over. When you're using your name or your phrase or your tagline or your podcast name or your course name or whatever it is, if you're using it as a trademark, you're using it as a mark that's important to your business.
[00:05:23] You can use the little TM symbol. You can use that because you formed the view that this is a genuine trademark. Be careful. Don't misuse it. Don't use it just because you want to. Don't use it uninformed.
[00:05:37] Be informed. And I'll talk about that in a moment, but you, the point is you can use it. And then once you've been through the IP Australia registration process, which takes about seven and a half months at the moment, once you've been successful in obtaining a registered trademark for that name or phrase, you can change the, that little TM to the capital R in a circle.
[00:05:55] You've all seen it, the little R that is in a circle next to a registered trademark. You can do that. Now, if this is of interest to you and you're thinking, gosh, Tracy, I really need to understand more about what you say here about something being capable of being trademarked. It has to be trademarkable.
[00:06:11] There's a lot of things to work through and you can dive over to my website and access my masterclass on copyright and trademarks designed for this specific purpose so that you can actually get the right information that you need in a really easy way directly via the website. The links to the masterclasses are in the show notes.
[00:06:32] There's one specifically on trademarks and copyright because it's so popular. It's so important. So that's trademarks. Now there are other things you can do to help protect your intellectual property in your name or phrase or tagline that you're using. So yes, we can explore the trademark path, but there are also some other little things that I think are really handy that you can do now. To protect your IP in your name or phrase that's important to you.
[00:07:02] The first thing you can do is register a business name for it. So if you're using your name or a phrase as your tagline or your podcast name or something like that, you can actually register that business name and have that attached to you. Whether it's you as a sole trader or you as a company, it gets attached to your ABN.
[00:07:19] You can have lots, there's no limit to what it is that you can register. But it's a really smart thing to do if it's important to you, because it stops somebody else lawfully registering it and using it. You can register the URL or multiple URLs. If it's that important to you, you make an assessment because you've decided it's important to your business.
[00:07:38] You don't want anybody else to be able to access it. So you can register the URL. If you're allowing a third party to use your name or phrase in certain circumstances, whether it's an affiliate arrangement or whether it's some type of contractor or service arrangement, you need to make sure that in your documentation, so your affiliate agreement or your contractor or service agreement, that you have it very clearly outlined that you retain your IP In this use, but that you are allowing that third party to use this name or phrase or whatever it might be pursuant to a license.
[00:08:13] And you set out proper terms, which govern that usage. The worst thing you can do is ignore this or be silent on it because then it's open to interpretation precisely what it is you're allowing the other person to do. And that's where we end up in that world of disputes, which is high risk, expensive and time consuming to sort out.
[00:08:35] So prevention is better than cure. If you're allowing someone else to use it, make sure it's documented properly. So that's what I want to share with you about trademarks and exclusivity over names or phrases in your business. We're talking trademark protection in relation to those things. Now let's talk copyright.
[00:08:57] It's more complicated now. Copyright is different because you don't actually have to make an application to register ownership of your copyright in Australia. We have the Copyright Act. So there's another piece of legislation and what it says is if you have created original work, so drawings or Images for photographs,
[00:09:19] think interior designers, think photographers. If you've created a logo or a design web designers and graphic designers, if that is your original work, the copyright is yours. And the Copyright Act says so, so you don't actually need to make an application anywhere like you do with a trademark. You don't have to make that application.
[00:09:41] It's automatic. In Australia, the copyright in that original work that you have created and brought into the world can't be a thought or an idea, it has to be something you've created. The copyright's automatically yours. So the most meaningful discussion then becomes around how to protect it.
[00:09:57] If you want to assert your ownership in your copyright, you need to say so. if you're an interior designer and you're working with a client, if you're a photographer and you're working with a client, you need to make it very clear in your client service agreement that you assert ownership over your copyright
[00:10:13] for your intellectual property, that you're not transferring it to the client under this service arrangement, but that you are allowing the client to use it in certain circumstances. If the client then wants to use it beyond that, they need to talk to you and reach agreement to do so. You need to consent.
[00:10:31] And presumably there'll be a fee attached to that as there should be.
[00:10:36] It is important that this is outlined For clients and third parties, whether they're real estate agents, private clients, commercial clients, whatever it is, you need to outline very clearly in your agreement, how your copyright, your IP is being dealt with, the basis that they're entitled to use it, the fees that you're charging for them to use it.
[00:10:55] And then, And make it very clear that unauthorised use is not permitted. Now, again, if you don't cover this and you ignore it and you think it'll be right, I'll sort it out later. You're leaving it open to interpretation by that other party as to what it is that they're permitted to do. With your IP under that arrangement, crystal clear clarity is vital here so that you can protect what is rightfully yours.
[00:11:21] Now, if a third party seeks to use your work without your consent, let's say your drawings, your clients taking your drawings to somebody else to say, hey, can you now just amend these please and develop these. If you've made it clear in your service agreement with your client that they can't do that, and if you've put your copyright notices on your drawings themselves, this is just one example, but on your drawings themselves, that this is my copyright, unauthorised use is not permitted, it makes it unauthorised.
[00:11:52] Far simpler for you to reach out to your business lawyer to say, Hey, this is what's happened. Can you help me please by drafting a cease and desist letter to this person? And yes, we absolutely can, but your position is strengthened when you have asserted your copyright. On the drawings themselves and in your client service agreement, the same goes for your designs, your photos, all those sorts of things, making it clear that you're asserting your copyright, that you own the IP and you're not transferring it is really important.
[00:12:23] Because then if someone does do the wrong thing, it's much easier for you. To bring that to their attention and to have them cease and desist from that conduct, or to have them enter into a discussion with you about a suitable arrangement for a license for that use and payment of a suitable license fee.
[00:12:40] Sometimes the reality is people don't know they're infringing your copyright. They don't know they're not allowed to do what they're doing. Sometimes that is genuinely hand on heart the case. So that cease and desist letter can be very impactful because you're explaining to them what they're doing is wrong and this is how to resolve it.
[00:12:57] Sometimes though, the sad reality is people are doing the wrong thing and they don't care. And they think to themselves, things like, well, I'm going to do it. What are they going to do about it anyway? And this is the hard conversation that I have with clients sometimes because I say to them, yes, that's right.
[00:13:12] That person's doing it. No, they're not permitted to. we've issued a cease and desist letter on your behalf. And the other party is ignoring us. That's the bluff isn't it? That's the bluff where the other party thinks, well, I'll just wait and see what they're going to do.
[00:13:24] Because you now have legal recourse available to you, albeit that can be a time consuming and expensive process, as we all know is the case when it comes to legal proceedings and going to court. But the fact is, you have that option available to you, if somebody's infringing your copyright, because you've made it very clear in your client terms and conditions or your service agreement, what the permitted use is for that intellectual property.
[00:13:51] It's very easy to demonstrate an infringement and you then have legal recourse in relation to license fees, loss of revenue, reputation, whatever it might be, the list is long, we can go down that rabbit hole another time together. But the point is. There are avenues available to you if you've done everything properly to protect your IP, if somebody's infringing it and you can't resolve it by negotiation or discussion.
[00:14:17] I'm always the lawyer that says, pick up the phone and have the conversation. Yes, let's send the cease and desist. Let's talk to them. Let's resolve it. Let's be adults. Let's use our words. Let's have the conversation and see what we can do, absolutely, to exploring all of that. But ultimately, if that's unsuccessful and somebody won't engage with you and they are doing the wrong thing, there is recourse available to you.
[00:14:38] Now, that applies both if you have a registered trademark and someone's infringing it, or if you are relying on the Copyright Act in relation to your original, work, such as your drawings or your photos, then you have this recourse available to you. To seek orders from a court to not only have that party stop infringing your work, your copyright, your IP, but to seek damages in certain circumstances.
[00:15:01] Now, what that might look like depends entirely on the scenario. So it is again, a case by case basis that we need to consider, but it's important for this podcast episode that, you know, that's an avenue available to you.
[00:15:15] I now just want to share a little bit about my thoughts on AI in developing your work. There's a lot of literature around and a lot of legal brains talking about AI and how it's really complicated and the laws unclear and oh gosh, we just don't know. In true Tracy fashion, I would like to distill that and simplify it.
[00:15:36] And I'd like to share with you my view on this. Now I've done a separate podcast episode entirely on chat, GPT and copyright, and what that looks like in terms of ownership. And that's episode 128 chat, GPT and copyright. So you're welcome to dive into that. If you want to hear more on this, I've spent an entire episode on that topic.
[00:15:58] For these purposes. I've got more of my interior design clients reaching out to me saying, Hey, Tracy, I want to use AI. In the creation of my work, what do I need to include in my agreements? And do I own it now? AI has its place. It's not going anywhere. Let's just call it for what it is. Love it or hate it.
[00:16:18] It's not going anywhere. AI has its place in small businesses to help sometimes in the backend with streamlining processes and systems. It has a place. I know people that use it to generate content. I know people that use it for inspiration. Fair enough. But when we're talking about using AI to develop your creative work, I need to ask you whether or not you think then that that's your original work.
[00:16:45] Your original work is protected under the Copyright Act. If you're using AI, is that your original work? I say no. If you're using AI to generate, your creations because your client has engaged you to do so. Don't you think your clients engaged you for your expertise because they've seen your portfolio or they know your reputation or they want your creative brain on their job? So how do you think they'll feel if they learn that you're going out to AI?
[00:17:17] I'm just posing that question for you as food for thought because there's a lot of hype around AI. I don't necessarily think it's all good. I think being measured, be intentional and be really considered in the way that you use it. But if you're going to use AI to help develop your creative work, that in my mind puts a real question mark over how much of that work is actually original.
[00:17:43] Because in fact, it's not coming from you, is it? Part of it's coming from an AI source. So think about that really carefully because that Use of that AI may compromise your position later. If you are seeking to protect or enforce your rights around your IP ownership, because the first thing that would need to be considered is what is it that you actually own?
[00:18:06] What is it that was actually original? So looking at the origin of the work is always going to be important. And if you come to a lawyer like me, that's the first thing I'm going to dive into. Is the origin to understand and be satisfied. First of all, that it's original so that it's worth taking those next steps on your behalf.
[00:18:23] So give that some thought when you're considering AI in your business. I've got lots of creative clients that won't go near it, all the power to you. I've got some that are trying to explore ways to embrace it. Again, do what's right for you. Full respect here. The life of a business owner is never easy and the journey is hard.
[00:18:42] So I'm all for exploring all the things, but not at the cost of the journey. Of the integrity of your legal position on things like intellectual property and copyright. So that's all I want to say about that in this episode.
[00:18:56] So there we have it. That's what I wanted to share with you. My creative small business followers who are curious about intellectual property, what it actually is, what it means for your business and what you can do to protect it. So we've really focused on trademarks and copyright. There's legislation.
[00:19:14] I've explained that the trademarking path is a long one. It can be confusing, doesn't need to be. I have a masterclass to simplify it for you and share with you exactly what you need to know and why. And then there's the copyright. So if it's your original work, you don't actually have to make An application elsewhere to have it protected, but you need to be crystal clear on what it is that you're protecting and make sure that you are outlining in your agreements, in your contracts, on your documentation, where you can, what your position is in relation to that copyright.
[00:19:48] i. e. that you're preserving it, you're not assigning it, and you're giving a license for use. So that all needs to be outlined. I hope this has helped in answering some of your questions that you might have been mulling over around how you can best protect your copyright in your business. And as always, if you have questions, please feel free to reach out, because that's what I'm here for.
[00:20:07] To answer questions you've got, and to help support you set up your business. Bye. Properly so that you can avoid being one of the clients that I acted for in the earlier part of my career. When something goes wrong, please, it would mean the world to me if you would share this episode with your business friends or business colleagues, because together that is how we get the podcast into the ears of even more business owners as always.
[00:20:29] Thank you so much for listening. I'll catch you next time.
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