Brendan Palfreyman is a craft beer attorney with Harris Beach PLLC in Syracuse, NY and a member of the NYS Brewers Association. He also created and runs the brewery trademark resource website: www.trademarkyourbeer.com. A major focus of Mr. Palfreyman’s practice is representing and counseling craft breweries in New York State with regard to trademarks, corporate issues, real estate, and contracts. Brendan is an award winning homebrewer and has appeared as a guest on podcasts like Steal This Beer and Beer Sessions Radio. He is a dedicated and award winning homebrewer and filed the trademark for the folks at Milk the Funk. He even had a beer named after him by a grateful client – Palafrenero from Casita Cerverceria. bpalfreyman [at] harrisbeach [dot] com.
In the first part of this series, I covered the benefits of copyright registration for brewers. This article addresses and equally important topic: whether you as a brewer are the owner of the copyright in your label art. This is important because copyright literally protects the right to make copies, which includes the right to print beer labels or cans. If you don’t own the copyright in your beer labels, the actual owner could prevent your brewery from printing more labels.
Let’s say you hire a design firm to come up with your bottle or can label or to design your website and you pay them for their services. Or you have a friend that does graphic design and she creates the art for you as a favor. In either case you would own the copyright, right? Wrong. Copyright is owned by the author of a work, and even if the author is paid for the work, the author retains the copyright. This is why it is important for breweries to get the author to sign a legal agreement that transfers the copyright to the brewery.
There is an important exception to the general rule that the author of a work owns the copyright in the work, namely the Work For Hire Doctrine. Under this doctrine, if the person who creates the label art is an employee of the brewery and part of that employee’s job is to create label art, the employer – here, the brewery – owns the copyright. Put differently, when a work is prepared by an employee within the scope of his or her employment, the employer owns the copyright in the work.
The takeaway here is that, if you are not designing your labels or website in house, you will want to have an appropriate legal agreement that transfers the copyright from the designer to your brewery. And even if your labels are designed in house, you may want to check with an attorney to make sure that Work For Hire Doctrine applies.
Previous articles for the New York State Brewers Association focused on trademark concerns for breweries, including proper trademark searching, federal trademark registration, and what to do if your brewery receives a cease and desist letter.
Please see www.trademarkyourbeer.com for more information about brewery trademarks. This blog is intended to provide general information on a wide range of issues, including legal issues, affecting the brewing industry. It is not intended to provide specific legal advice and no legal advice is given. You understand that merely using this blog does not create an attorney client relationship between you and any attorney at Harris Beach PLLC or Brendan Palfreyman. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. This blog is intended to provide general information on a wide range of issues, including legal issues, affecting the brewing industry. It is not intended to provide specific legal advice and no legal advice is given.
