85 ACID How many of us don’t read the small print and end up in a bit of a pickle? In the hustle and bustle of life do you tick the box “I have read and understood the terms and conditions of agreement” without looking and live to regret it? Sadly, most of us do tick the box, move on, and this can lead to unintended consequences. A word of warning So, a word of warning! Taking a moment to read the small print in terms and conditions is crucial, especially regarding intellectual property (IP). These terms often outline how your content, ideas, or data may be used, modified, or shared by the service provider. Failing to read them can lead to dire consequences, such as unintentionally granting the company rights to your work. For instance, by uploading content to a platform, you may unknowingly give them a perpetual, royalty-free licence to use it in marketing or sell it. This could result in losing control over how your IP is distributed or monetised and reclaiming those rights can be impossible after agreeing. Additionally, hidden clauses might limit your legal recourse if your IP is misused, or they could even include non-compete agreements that restrict your future creativity or business opportunities. To protect your ownership, always read the fine print carefully, and seek clarification if needed. Otherwise, you risk losing the rights to your creative work or having it exploited without proper compensation or credit. The devil is in the detail So, the devil is in the detail! If you are unlucky enough to be in any dispute and this includes IP, whether it concerns the ownership of graphics or who owns the photography, the terms of a licence/royalty agreement or a confidentiality agreement, it’s good to know where you stand. It’s the small print which counts in your commercial relationships and allows you to address these hiccups more easily. Spending a few moments to see if your agreements are healthy and fit for purpose will also help you identify where your IP is at risk. After all, you want your business to grow and allow you to develop business relationships to provide a return on investment for the time spent, so why not cross the t’s, and dot the i’s. NOT reading the small print makes lawyers rich! Clarity of ownership Most companies will have marketing material and use a photographer, so clarity of ownership is needed. Who owns the rights? Many believe that if you pay a photographer to take photographs of, say, a new range of products, the commissioner (or the person who pays for the photographs) will own the rights. In law, the answer is usually NO! The photographer will be the first owner of the IP rights, the copyright, in the photograph(s) of your designs. However, it is possible to obtain the copyright by having the photographer “assign” the copyright to you and it is important to realise that copyright may only be assigned by a signed agreement in writing. Having an Intellectual Property Assignment Agreement drafted is the best way of achieving this. Once you have a template agreement, this can be used to fit different circumstances. Better to be safe than sorry Paying for the services of a professional photographer makes no strict difference to the legal position as stated above. However, payment may well provide an ‘implied term’ of any agreement that you have with the photographer, that you intended to own the copyright rather than the photographer. Such an implied term will most likely result in your being permitted to decide where your photographs are published and for what purpose. The photographer will also have moral rights associated with the photograph(s) he/she has taken. This means that you will have to consider not using the photographs in a manner that could be interpreted as derogatory by the photographer. You will also have to credit the photographer as having taken the photograph(s) wherever published. For you to have full rights over how the photograph(s) are published, and to avoid having to name the photographer each time, you will need the photographer to ‘waive’ these moral rights. A waiver of moral rights may be incorporated into an Intellectual Property Assignment Agreement. Anti Copying in Design (ACID) has a menu of generic agreements for most IP related commercial relationships together with useful fact sheets to explain how and when these should be used. So, our advice. Take a couple of moments and think, “Have I crossed the T’s and dotted the I’s by reading or including the small print.” Better to be safe than sorry. Who reads the small print? ACID Co-Founder & Chairman, Dids Macdonald, shares the importance of reading the small print To find out more, visit www.acid.uk.com ACID Case Study ACID recently spoke to a member who had purchased a confidentiality agreement. She commented, “We’d been working with someone who had been fantastic when we started up the business, but we got our fingers burnt when we felt he may have taken some of our “know how” and our ideas and there was nothing we could do about it. We have now just employed our first member of staff and have ensured that, as part of our stadard terms and conditions of employment, there is a signed confidentiality agreement. This gives us assurance that should things go wrong we can rely on the small print. There are so many “hats” that a small business owner must wear and sometimes it’s easy to forget something that really matters.”
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