Recently, the set designer for New Zealand singer/songwriter Lorde created a floating glass box that was displayed above her stage and performed in by dancers during her concert. Another famous musician subsequently replicated it above his stage during his concerts.

Lorde claimed the musician had “stolen” her stage design. However, Lorde’s set designer provided comment that she had originally designed it for an earlier-in-time orchestral group’s performance.

So who then owns the intellectual property in the floating stage design?

Ownership in Intellectual Property

When you have created, invented, developed, or designed, something you are generally the owner, and have intellectual property rights in that creation for a certain period of time.

Where you are employed by a company and have created, invented, developed, or designed, something while employed, issues of ownership can sometimes arise. If the intellectual property was created “during the course of employment” then the employer is likely to be the owner of it unless your employment agreement states otherwise.  

However, where the employee creates the intellectual property in their own time, has used their own resources and the “creation” is outside the scope of their employment (and employment agreement), then the employee can be the owner of the intellectual property.

To alleviate issues around ownership, written employment agreements should contain specific clauses about intellectual property. These can state that all intellectual property work created by the employee belongs to the employer, whether or not it was created outside of work hours or outside of work premises.

As a result, employees should read their written employment agreements carefully to ensure they own what they consider to be their intellectual property as it may be owned by their employer.

Where an independent contractor is hired to create intellectual property for someone, or a business, the independent contractor generally remains the owner of the IP. However an independent contractor agreement can change this position to allow the business to own the intellectual property, either by assignment or license back to the business owner.

In the example above, if we assume Lorde “employed” her set designer, Lorde would probably own the intellectual property in the floating stage design. However, if the set designer was hired as an independent contractor and there was no agreement stating Lorde has ownership in the intellectual property, then the owner of the floating stage design would likely be the set designer.

Interestingly though, the orchestra who created and performed in the floating stage prior to Lorde may have ownership in the design. If this were the case, Lorde and the set designer would have no ownership rights and would then be unable to claim another musician “stole” the stage design.

Why is ownership important?

If someone has infringed on your intellectual property, it is important to know who owns it as they are the only ones who can make a claim. If you are not the owner, then you do not have rights to prevent someone else from using the intellectual property.

If you or your company wants to use intellectual property, it is imperative to ensure you own it, or have the rights to use it.

Kirsten Ferguson

IP Lawyer
Wellington