By Valerie Brennan, Partner at Plave Koch PLC
For many franchisors, trademarks are the first thing that comes to mind when discussing intellectual property. The brand name and logo are certainly important, but they may represent only part of what makes a franchise system valuable.
Franchisors create and use a wide range of original content. Educational franchises may rely heavily on curriculum, lesson plans, workbooks and assessments, while quick service restaurants typically use product photographs and creative marketing copy. This content helps franchisees operate consistently, deliver the expected customer experience and maintain the standards associated with the brand.
Yet franchisors do not always give these materials the same attention they give their trademarks. Copyright protection can help close that gap.
What Does Copyright Protect?
Copyright protects original creative expression that has been fixed in a tangible form (such as a writing or recording). Depending on the franchise system, that may include manuals, training materials, instructional content, graphics, photographs, videos, software, building designs, website content and other original works.
Copyright does not protect the underlying idea, process or method. For example, a fitness franchise cannot use copyright law to prevent others from offering a specific, creative exercise classes, and a restaurant franchise cannot protect a recipe or method of preparing food under copyright.
Copyright exists when an original work is created and fixed. Registering the copyright is a separate step that involves submitting an application and a copy of the work to the U.S. Copyright Office. Although registration is not required for the copyright to exist, it can make the right far more useful. Registration is generally required before filing an infringement lawsuit in the United States. Timely registration may also give the owner access to statutory damages and attorneys’ fees.
Do You Actually Own the Content?
This question can be more complicated than it appears.
Works created by an employee within the scope of employment belong to the employer. Different rules apply when a franchisor hires an independent writer, photographer, designer, videographer, software developer or marketing agency.
Paying for the creation of a work does not mean the franchisor owns the copyright in that work. Contractor agreements should clearly address ownership (with a clear, present assignment) and the company’s right to modify, distribute and license the work to franchisees.
Franchisors should also consider copyright ownership and use of materials created by franchisees. A franchisee may develop a local marketing campaign, training resource, photograph or other material that could be useful throughout the system. The franchise agreement should explain who owns that content and whether the franchisor may use it more broadly within the system.
Set Clear Rules for Franchisee Use
Franchise agreements and brand standards should identify what copyrighted materials franchisees may use, how they may use them and what happens to those rights when the franchise relationship ends.
These provisions are particularly important when former franchisees retain copies of manuals, continue displaying branded materials or use the franchisor’s photographs and website content after termination. Copyright rights are often easier to enforce than trademark rights, with additional enforcement options such as procedures for requesting the removal of infringing online content.
Protecting the Content Behind the Brand
Copyright should not be an afterthought for any franchise system. Franchisors routinely create valuable materials that help define how the business operates and how the brand is presented. For a content-rich franchise, original materials may be among the system’s most valuable assets. Copyright protection offers a relatively simple and cost-effective way to safeguard those assets from misuse by former franchisees and copycat competitors. Working with legal counsel to confirm ownership, register important works and establish clear rules for their use can strengthen a franchisor’s intellectual property portfolio and protect the content that distinguishes the system.