Working in small business, graphic designers, web designers and marketing/advertising agencies are all regularly in the position where a client want you to “create a brand”.
Creative types are of course exactly that, though creative, care-free and resistant to being bogged down in monotony. Legal ramifications and financial consequences are mind-numbing things to be left to boring non-creative types… like lawyers.
However, even free-spirited creative types still run (or work for) a business. And not stitching up your business (nor your customer) are fairly critical to being able to carry on doing what you love.
TIP 1: Care about whether the brand you have created is capable of being exclusively owned by your customer
Creating the most glorious and appealing brand ever for your new client only to find out that there is already a hamburger restaurant called McDonalds is not a job well done.
Whether someone else is already using the brand is only one obstacle to exclusive ownership. The other is whether or not it can be owned at all. Best Designers might be an appropriate name for the Best Designers, but you’re not going to be able to trade mark it because it is descriptive and generic. And so when another Best Designers starts up in the next suburb, your ability to stop them is severely diminished.
Partner with a law firm so that when you come up with a name/logo, you can get some preliminary feedback on its trade-mark-ability;
Recommend to your clients that they seek assistance in this regard also. You do not want to be taking on the liability of providing advice on whether someone is likely to be able to trade mark their name/logo.
TIP 2: Make it clear in your Terms & Conditions who will own what and at which point in time that ownership will vest with whom
Most creative types who generate something for a client and are paid for the privilege will acknowledge that they expect that the customer would own the proprietary rights in those creations at the conclusion of the matter. Or maybe there are items used such as photographs you’ve created and would like to retain ownership in and re-use?
However, a transfer of copyright is required to be in writing and it is an oft forgotten rule that can lead to disputes or angst down the track.
Make sure your work is protected
Consider whether your client owns it immediately, or only once they have paid their bill. Don’t go giving away your leverage to get paid, unscrupulous characters will take advantage of that.
Are there some items within your work product that neither party will own? eg. creative commons images. Make sure your customer is aware of this so they don’t get a shock when they see someone else using the image. Have you also retained a licence to use the work product for promotional/portfolio purposes?
TIP 3: Sort out your business structure
This is most often neglected by sole traders or start-ups. Not many people want to go to such effort and expense before they are sure if their business will succeed. However, you should start out how you mean to finish. If your plan is to grow, then plan to grow.
TIP 4: Don’t forget to enforce your moral attribution rights
The best form of advertising is potential customers seeing your work and wanting to get in on that action. Ensure your customers (or other forums) are acknowledging your work when it is published or re-published.
These rights exist and cannot be contracted out of, so don’t let anyone tell you otherwise. Don’t forget to seek legal advice if needed.
What are your thoughts? Let us know by commenting below.