A logo is often treated as something a business naturally owns. It appears on the website, email signatures, packaging, proposals, invoices, social media pages and marketing material. It may have been used for years and may be closely associated with the business in the minds of clients, customers and suppliers.

However, use of a logo and ownership of the copyright in that logo are not always the same thing.

Many businesses only discover this when they need to rely on the logo as a legal asset. The issue may arise during a trade mark filing, an IP audit, a business sale, a licensing discussion or a dispute with a competitor. At that point, the business may need to show not only that it has used the logo, but that it owns the underlying copyright or has the necessary rights to deal with it.

In South Africa, copyright may protect the artistic work in a logo, provided the relevant requirements for copyright protection are met. Where a logo was created by an external designer, freelancer, agency or other third party, the copyright will not always automatically belong to the business that commissioned and paid for the work. A written and signed assignment may be needed to transfer that copyright properly.

The difficulty is that many businesses only look for that assignment when they already need it urgently.

Scenario 1: The logo was created by a freelancer or individual designer

This is common in start-ups and growing businesses. A logo may have been created by a freelance designer, a friend of the business, a former colleague or an independent consultant during the early stages of the brand.

The invoice may have been paid and the logo may have been delivered, but the paperwork may not say anything about copyright ownership. Years later, when the business wants to register the logo, enforce its rights or attract investment, it may have to trace the original creator and ask them to sign a deed of assignment.

That exercise can become difficult if the designer has moved, stopped trading, become unresponsive or passed away.

Checklist for businesses

Before relying on the logo as a business asset, check whether:

• The original designer can be identified;
• There is a written agreement dealing with copyright ownership;
• A deed of assignment was signed;
• The assignment covers the final logo and any variations in use;
• The business has records of the design process, payment and approval.

Scenario 2: The logo was created through an agency

Businesses often assume that the position is simpler when they have used a professional agency. That is not always the case.

An agency may have developed the brand identity internally, or it may have used freelance designers, illustrators, typographers or other subcontractors. The business may have an agreement with the agency, but the agency’s own agreements with the individuals who created the work may also become relevant.

If the chain of ownership is incomplete, the business may need to resolve the gap before it can confidently enforce or commercialise the logo.

Checklist for businesses

When an agency has been involved, check whether:

• The agency agreement deals expressly with IP ownership;
• The agency had the right to assign the copyright to the business;
• Subcontractors or freelancers were used;
• Any third-party fonts, illustrations, icons or stock elements were included;
• The business received a final written assignment from the correct party.

Scenario 3: The issue only emerges during a dispute or transaction

The most difficult ownership questions often arise under pressure. A business may need to stop a competitor from copying its logo. It may be preparing for a sale, merger, due diligence process, licensing deal or franchise arrangement. It may also be updating its trade mark portfolio and discovering that the copyright records do not match the business’s assumptions.

In those circumstances, a missing deed of assignment can delay a process that should have been straightforward. It may also create negotiation risk, because the person whose signature is needed may realise that the business now needs the document urgently.

Checklist for businesses

Before a dispute, transaction or filing deadline arises, consider whether:

• All current logos and brand assets have been audited;
• Ownership documents are stored with the business’s IP records;
• Historic logos, current variations of the logos and campaign logos have been checked;
• The business can prove ownership without relying only on invoices or email trails;
• New design work is commissioned under terms that deal clearly with copyright assignment.

Brand ownership should be documented early

A logo is usually one of the most visible parts of a business, but the legal ownership behind it can be overlooked. The safest time to deal with copyright ownership is when the logo is created, not years later when the business needs to prove its rights quickly.

For new brand work, businesses should ensure that their agreements with designers, agencies and other creatives deal clearly with ownership, assignment, permitted use and third-party materials. For existing logos, an IP housekeeping review can identify whether the necessary assignments are in place and whether any gaps need to be corrected.

A signed assignment is usually a simple document when everyone is available and cooperative. Without it, a business may face avoidable uncertainty, substantial cost and delay at precisely the moment when it needs its brand rights to be clear.