Taking care of what’s yours



Technology has rewritten the intellectual property (IP) landscape, but it’s also had an enormous effect on the world of marketing. A field once dominated by TV ads now includes websites and social media, and freelance graphic designers can achieve on a laptop what it used to take an agency to do. But these freelance workers are struggling with new IP and copyright issues. At what point does a design become the property of the client instead of the designer?

This thorny issue was highlighted in the recent controversy around the posters for Spike Lee’s movie Oldboy. As marketing started ahead of the film’s release, an open letter from a freelance designer went viral. Juan Luis Garcia wrote to Lee claiming that the promotional posters were his design and asking for help to get money from the advertising agency. Mr Garcia alleged that he worked for two months on the project, despite never signing a contract, and when he declined the low offer from the agency for his work, they went ahead and used it anyway.

In a highly competitive sector, designers are frequently asked to come up with ideas for nothing and only get paid if their work is used, while risking having their work “stolen”.



As creative types struggle to get paid in a post-internet world, writers of all stripes have arguably been the worst hit. Journalists are competing with the free and fast knowledge available online; authors are scrambling to get to grips with a competitive sector, the problems of the e-book model, and the need to spend at least some of their creative power on self-promotion online and in social media. With traditional copyright protection being disrupted by the ease of e-book piracy and the impossibility of chasing down all the sites devoted to reposting content from other websites, the publishing model is evolving along with copyright itself.

Crowdfunded publishing, for example, keeps the writer in control of their own copyright while inviting readers to pay for or even profit from exactly the kind of content they want. On new startup Inkshares, writers sell a share of their book or long-form article’s prospects to their fans. If the project is successful, readers not only get to read it, they can reap the benefits of their investment. On Beacon, customers can subscribe to their favourite journalists or sponsor an individual project that appeals to them. Self-publishing is another way authors are using IP and technology to sidestep traditional publishers and take more of the profits of their products.



Intellectual property is not just about protecting inventions, it’s also about shielding the brand associated with creations, whether they’re mobile phones or catchy songs. Politicians often use popular hits as backing tracks for advertisements taking down their opponents, or as rallying calls, or even as a way of showing they’re in touch with the common man. In recent years, however, musicians have started to push back on this use of their IP that takes advantage of the cultural cachet attached to their creative output without their permission.

Discontent with the practice in the UK started mildly enough in 2010, when Keane’s popular single Everybody’s Changing was used at a Conservative Party manifesto launch. Drummer Richard Hughes tweeted that he was “horrified” adding, “To be clear – we were not asked. I will not vote for them”. But last year Radiohead frontman Thom Yorke said he would sue Prime Minister David Cameron if he ever used one of his songs for a Conservative campaign. In the United States, Republican candidates have already been successfully sued for using songs without permission. Senator John McCain, for example, had to settle for an undisclosed sum and issue an apology for using Jackson Browne’s hit Running on Empty in a campaign ad attacking Barack Obama’s energy policies.



Telecoms is one of the most glaring examples of the disruption of intellectual property, with so-called patent wars between top smartphone-makers Apple and Samsung dominating the headlines as these devices have reached into every aspect of modern life. Mobile phones and tablets have exploded on to the scene and quickly grown into a multi-billion-dollar industry on the backs of two kinds of patents, standard-essential patents (SEP) and the rest, including design, software, hardware and so on. The trouble comes from the fact that frequently the owners of the SEP, which are, as the name implies, necessary to build networks and devices, are also supplying products using these and other patents.

SEP for an agreed standard is supposed to be licensed on a fair, reasonable and non-discriminatory basis, which is how the world enjoys 3G mobile networks. But, despite this ostensible co-operation, firms have often attempted to wield these patents in legal battles in an attempt to protect their other products, while other companies have taken the co-operation to mean they can try to use the patents for free. With the shift to 4G networks, the entire landscape is likely to shift again as newcomers, such as Huawei that invested in R&D in LTE (Long Term Evolution) and WiMAX (Worldwide Interoperability for Microwave Access) networks, become major players overnight.



From seed to Michelin-starred restaurant delights, IP rights are leaving a bad taste in the mouth. Global food giants such as Monsanto are attracting criticism for holding the rights to new seeds – some genetically modified, some not – that others argue could help solve the world’s food crisis. The Academy Award-nominated documentary Food, Inc is the most high-profile treatment of so-called big agriculture, but seed patents aren’t new. Louis Pasteur patented his germ-free, beer-making yeast in 1873; however, the father of vaccination and pasteurisation does not attract the same ire as billion-dollar biotech firms.

In 2009, the UN’s special rapporteur on the right to food, Professor Olivier de Schutter, said pressures on the world’s food supply meant the system needed to change. “The current intellectual property rights regime is suboptimal to ensure global food security today. It is unfit to promote the kind of innovation we need to cope with climate change,” he said.

Further along the chain, chefs in France have been instigating camera bans in their restaurants to stop images of their dishes and menus slipping into the public domain. Such a food photo ban seems extreme, but it would only bring top restaurants in line with cinemas and art galleries.



British domestic football has been transformed in the last 20 years. Much of the credit has been given to Sky TV’s influx of money, but relaxed rules on overseas players, the growth of pan-European competitions and intense marketing have all helped. Football is less about local pride for many of those in the boardroom and more about “the brand”, a phrase to make any traditional fan roll their eyes.

In recent years, players, no doubt helped by their growing entourage of advisers, have realised that they are in fact the end of the line for that value. Gruff managers have bemoaned “player power”, but it’s really about the retention of image rights, the player’s IP.

David Beckham brought the concept to the mainstream with the inclusion of image rights in a Manchester United contract signed back in 2002. In his first year at Real Madrid, the club sold one million of his number seven replica shirts. It’s generally accepted that while an excellent player, his commercial draw was a bigger factor in the move. Fast forward to another Brit who landed in Madrid, Gareth Bale, and the full battery of image rights is on show. Bale has reportedly trademarked his “heart” goal celebration and is expected to derive a third of his earnings from his image rights.