Intellectual property held by the owner or freelancers

A business's name and logo, software, website content, product designs, photographs, recipes and course materials can be worth more than its equipment. You would expect the business to own them. Often it does not, at least not on paper.

Two gaps are common. The first is the owner holding rights personally: the trademark registered in their own name, or the core code written before the company existed and never transferred to it. The second is work created by freelancers, agencies or contractors without a written agreement giving ownership to the business. In many countries, including the UK and the US, a freelancer or contractor who creates a work usually keeps the copyright in it unless a written agreement says otherwise. Paying the invoice does not, on its own, transfer ownership.

If the business does not own what it sells or relies on, you may have only an informal permission to use it. At worst, a former developer or designer can demand payment or try to stop you using the work. Buying the company's shares does not close the gap, because the company never owned the rights in the first place. Lenders, investors and any later buyer will ask the same questions.

This is usually fixable before completion (closing in the US). The owner and the key creators sign assignments transferring their rights to the business, trademarks are moved into the company's name, and the sale agreement includes warranties that the business owns or is licensed to use everything it needs. It becomes harder when a creator cannot be found, refuses to sign or has licensed the same work to others. The rules differ by country and by type of right, so take advice from an intellectual property lawyer.

• Trademark registers show the brand in the owner's personal name, or the brand is not registered at all.
• Software, content or designs were produced by freelancers or an agency, and there are no signed contracts.
• The founder wrote the product before forming the company.
• Photographs, fonts, music or stock images on the website have no licence records.
• The business trades under a name or logo similar to another business in its market.
• A manufacturer or agency refers to the product designs as its own.

• Who created the software, content, designs and brand assets, and under what agreements?
• Which trademarks, designs and domains are registered, and in whose name?
• Have all employees, contractors and agencies signed terms assigning their work to the business?
• Is any third-party code, content or data used under a licence, and does that licence survive a change of owner?
• Has anyone ever claimed rights in the business's name, content or products?
• Will you and the key creators sign confirmatory assignments before completion?

• A schedule of registered and unregistered intellectual property, with the legal owner of each item
• Trademark, design and domain registration records
• Contracts with freelancers, agencies and developers, including their intellectual property terms
• Employment contracts showing intellectual property and confidentiality clauses
• Licences for third-party software, open source components, fonts, images and data
• Any correspondence about infringement claims, disputes or takedown requests