It is common place for a company to outsource and pay an outsider, such as a branding agency, to create its logo. However, who is then the owner of the copyright in the logo? Typically it is only once faced with a dispute that the company realises that it is, in fact, not the copyright owner of the logo of its business.
In terms of South African Copyright law, Section 21 (1)(c) of the Copyright Act provides that where one party commissions another party to create a work, provided it is a photograph, portrait, gravure, sound recording or film, the copyright belongs to the party that commissions the work if it pays or agrees to pay for the work. Therefore, this provision does not provide for other artistic works or literary works, which means that the person who created such work is the first owner of the copyright. However, if you are aware of this you can avoid this unwanted situation by making sure that there is a clause in your contract with the designer of your logo stating that they agree to transfer copyright ownership over to you – it is key for an assignment of copyright to be in writing and signed by or on behalf of the assignor.
There have been a few cases in the UK where such precautions were not taken and the logo designer has asserted its copyright ownership in the logo. In these case the UK courts have come to the assistance of the brand owner either stating that it was an implied term of the contract for the creation of the logo for the copyright therein to be assigned to the brand owner or that it doesn’t make sense for the copyright to remain in the designer’s ownership as this is “unusual and commercially dangerous” for a brand owner. In these matters the UK courts have ordered that the designer formally assign the copyright in the logo to the brand owner.
A South Africa court has yet to deal with such a dispute and it is unclear whether it will take the same view as the UK courts, however it is likely that a South African court will find the UK decisions persuasive.
Nevertheless, the position in South Africa is not certain and this is a situation that can easily be avoided if the aforesaid precautions are taken when commissioning an outsider to create your logo.
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