Newspaper article The Journal (Newcastle, England)

Why Copyright Terms Need to Be Made Crystal Clear

Newspaper article The Journal (Newcastle, England)

Why Copyright Terms Need to Be Made Crystal Clear

Article excerpt

Byline: By Tonia Simpson

Generally speaking, the first legal owner of the copyright in a work will be its creator. Often, a term in a contract will provide that the person commissioning a work, rather than its author or creator, will be entitled to the copyright.

Where such a term can properly be constructed as an assignment of future copyright and complies with the relevant formalities then the copyright will vest in the commissioner.

In contrast, under a design contract, design right created passes automatically to the commissioner under statute.

In the absence of express terms, an implied term that the customer is to be entitled to the copyright or to use the copyright may nevertheless kick in.

A recent decision of the court of appeal in R Griggs Group Ltd v Evans explored the extent to which a court may imply an assignment or licence in copyright disputes involving commissioned works.

The case involved an advertising agency commissioned to redesign the UK point-of-sale materials for a client, including a new combined Dr Martins and Air Walk logo, who in turn commissioned the work from a freelance designer.

The designer claimed that worldwide copyright vested in him as first owner and that the client was only entitled to a UK licence.

As the agreement was silent as to copyright, the court considered implied contractual terms and upheld three established principles governing the respective rights of designer and client in copyright of commissioned works.

First, the mere fact that the designer has been commissioned is insufficient to entitle the client to the copyright and in the absence of an express or implied term the designer is therefore entitled to retain the copyright.

Next, the courts may only imply a term (a) that is equitable and reasonable; (b) that is necessary to give `business efficacy' to the contract; (c) that is so obvious that it `goes without saying'; (d) that does not contradict an express term of the contract; and (e) without using the benefit of hindsight. …

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