Intellectual property requires something more specific for there to be a real transfer of rights or at least a license or authorization to use it.
In the world of entrepreneurship, it is common to hear stories of brands whose owners assume that by paying someone to create their logo/label, they own it and, therefore, the designer should not continue to display it, keep it in their portfolio, or use it in any way.
The curious thing is that this belief is very common in practice. In this sense, it is important to understand that paying someone to create a logo does not automatically make me the owner.
Paying for a logo does not, in legal terms, equate to acquiring all rights. When a designer creates a work, whether it is a logo or an illustration that can be used to represent a trademark, the law recognizes them as the author from the moment of creation.
That author status comes with rights that do not disappear simply because payment has been received. What the client purchases, in most cases, is the service, that is, the creation of the design and delivery of the result. But intellectual property requires something more specific for there to be a real transfer of rights or at least a license or authorization to use it.
Without a document expressly stating that ownership is transferred, the designer remains the owner of their work, even if the client has the final file and every intention of exploiting it commercially as a trademark.
How does it work in Chile?
In Chile, the law distinguishes between several types of rights. On the one hand, there are moral rights, which correspond to the personal link between the author and their work.
These rights, such as recognition of authorship or the right to the integrity of the work, are inalienable and irrevocable, meaning they cannot be sold or transferred, even if the author wishes to do so.
On the other hand, there are economic rights, which are those that allow the work to be exploited economically (reproducing, modifying, distributing, or licensing it, among others).
In this sense, if I commission a third party to create a logo that I will then use to represent my business or as a trademark, it is essential to sign a contract for the transfer of economic rights and/or an exclusive license for the exploitation of the logo.
This contract must establish that the creator or author of the logo expressly assigns all their economic rights over the work, allowing me to exploit it without restrictions and acquiring full legal ownership of the design. Only through this assignment is it possible to avoid future conflicts and ensure that the visual identity of my business belongs entirely to me.
Similarly, it is important to mention again that even when there is a complete transfer of economic rights, so-called moral rights are never transferred.
These include the right to be recognized as the author and the right to protect the integrity of the work, which means that the designer can oppose any modification of the logo that distorts its essence or affects their professional reputation. These rights cannot be lost, sold, or waived. The law protects them precisely to safeguard the authorship between the author and their creation.
Notwithstanding the foregoing, it is important to consider that the Intellectual Property Law itself regulates the manner in which the transfer of rights must be perfected.
Article 73 of Law No. 17,336 provides that “the total or partial transfer of copyright or related rights, for any reason, must be registered within 60 days from the date of execution of the respective act or contract.” It also requires that such transfer be formalized by means of a public instrument or private instrument authorized before a notary public.
This means that, if a total transfer of economic rights over the logo is chosen, in addition to signing the contract, the company must register both the transfer and the work with the Intellectual Property Department (DDI), which involves an additional procedure and certain administrative costs.
Another legally valid and widely used alternative is to sign a license agreement. Through an exclusive, perpetual, irrevocable, universal (without territorial limits) license with authorization to modify, reproduce, and exploit the logo in all its forms, the designer retains ownership, but the company obtains a sufficiently broad right of use to operate without any risk or practical restrictions.
In conclusion, the myth that “if I paid for the logo, it is completely mine” is incorrect and leaves the door open to costly legal disputes for any business.
For a company to truly own the economic rights to the design that represents its brand and be able to register, modify, commercially exploit, or license it without risk, there must be a valid contract governing such transfer or, alternatively, a sufficiently broad license allowing for its exclusive use.
For more information on these topics, please contact our Intellectual and Industrial Property Group:
Eugenio Gormáz | Partner | egormaz@az.cl
Carlos Lazcano | Senior Associate | clazcano@az.cl
Fernanda Rodríguez | Associate | frodriguez@az.cl
Esteban Orhanovic | Associate | eorhanovic@az.cl
Matías Selamé | Associate | matiasselame@az.cl
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