Logos signify brand and business identity, so it is important to ensure your logo cannot be copied without your permission. The Copyright Act 1968 (Cth) provides automatic protection for many categories of material, including logos which may receive protection as ‘artistic works’, as soon as they are created.
Logos and copyright protection
Artistic works are among the categories of work protected by copyright. This category includes paintings, drawings, sculptures, photographs, and more. Provided your logo had some degree of skill and effort involved in its creation, it will automatically qualify for copyright protection. However, it must have been created by a human as opposed to being merely generated by a computer. Relatively simple logos have been recognised by the courts as copyright-protected, so the creativity level required is not high.
Ownership of copyright in a logo
The original author or creator of the logo owns copyright in a logo as soon the logo is complete. Often businesses have written agreements with the graphic designer of the logo to provide them with the economic rights. The exclusive rights of the copyright owner vary, with owners of copyright in artistic works entitled to:
- Copy or reproduce the work in a material form (including making digital copies and printing copies);
- Publish the work (to make the work available to the public for the first time); and
- Communicate the work to the public (to transmit the work electronically, including by putting it on a website, emailing or faxing it, and broadcasting it).
The original creator of the logo retains moral rights to the logo. These include the right to be attributed as the author, the right not to have authorship falsely attributed to someone else, and the right of integrity of authorship.
If your logo has copyright protection, there will be copyright infringement if a ‘substantial part’ of it is used without the permission of the copyright owner. The test courts apply to determine if a ‘substantial part’ of a logo has been taken is qualitative, not quantitative. Reproducing even a small part of the logo may infringe copyright if it constitutes a substantial part, which courts have held to mean an important, distinctive or essential part of the logo. Reproduction of a logo with alterations can still infringe copyright as courts will compare the two logos at face value to determine if important parts have been copied.
The exceptions to copyright allow people to use copyright material without permission. The exception allowing the incidental filming of an artistic work is relevant for logos. Essentially, if a logo appears in a film but is merely ‘incidental’ to the main focus, this will not be an infringement of your copyright. This includes using the logo on a billboard that appears in a scene with characters walking down a street or in a city square.
Also, copyrighted logos can be used for purposes of fair dealing such as:
- Research or study;
- Criticism or review;
- Parody or satire; or
- Reporting the news.
A trademark is any sign that you use to make your products and services distinguishable from your competitors. Therefore, a logo can be a trademark if it is capable of differentiating your products or services from those of other companies. This means logos may be both copyright and trademark protected. While copyright protection is automatic, a logo must be formally registered, requiring the payment of a fee, to receive additional protection as a trademark. An unregistered trademark is vulnerable to infringing existing rights or being used by others. Registration of your trademark will stop competitors from using your logo, or a deceptively similar version, in the course of their trade.
Copyright only protects the expression of an idea, not ideas or facts. Hence, business names and slogans are not capable of copyright protection as they are not a creative expression of an idea. Unlike how logos can be protected by both copyright and trademark law, names and slogans can only be protected by trademark law if they are registered.
It is important to ensure your logo has adequate legal protection because it is central to your brand. Your logo will be automatically protected by copyright as soon as it is created, and if it is sufficiently creative to be an ‘artistic work’. That entitles the copyright owner to exclusive economic rights. Your company could also choose to register a logo for trademark protection if you want the additional legal protection and economic benefits.