From The Archives ~ Topics: copyright
Copyright and Licensing
This article on copyright and licensing tries to cover the most important intellectual property issues that the graphic designer may confront. Copyright is the foundation for many of the rights created by the designer in the course of doing work. Whether on behalf of the designer or client, the de-signer must understand the attributes of copyright and how to protect and deal with copyrights. Licensing is the best way to be paid for creating copyrights—that is, to license and be paid for many pieces of a copyright rather than simply selling the entire copyright.
Download the full chapter, Copyright and LicensingFrom Professional Practices in Graphic Design, Tad Crawford, ed. Allworth Press, 1998. Re-printed with permission of author.
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The original article says:
"Licensing is the best way to be paid for creating copyrights—that is, to license and be paid for many pieces of a copyright rather than simply selling the entire copyright. "
but the reader should beware: as designers, any commissioned work that we create is called 'work for hire' and is the property of the client. The ONLY way to avoid this is to sign a written contract with the client BEFORE you start any work.
Licensing is not a way to be 'paid' for creating a 'copyright'. Once you create a work you have the exclusive right to license it (give it or rent it) to others. Whoever has the license (the licensee) gets money (royalties), which are a fraction of the profits.
The original sentence could be misread by some to think that you can arrange a license after creation. You cannot! (Well, it is a lot harder.) So please remember to have the client sign a contract BEFORE you start any work.
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It is my understanding that unless otherwise clearly specified in writing upon intiation of the agreement for hire or contract, that the rights of ownership remain property of the artist by default. The issue comes up distorted when you are contracted for specific tasks. An example might be to take something supplied and change it's colour or make a specific customer directed change to customer supplied work. For instance you are a photographer and it could be argued that the client storyboarded the project and art directed the shoot with enough input to dilute any of the photographers unique artistic ability. In that case a court might see the client as the creative source and therefore the owner of the rights. If the photographer was given some product and instructed to "make it look good, maybe use a blue background" it could be argued that the work is creatively influenced by the photographer and not the client. Here is a question: You have delivered work to CD for a customer to manage their own printing. Does the customer own the layered images used to create the file(s) or simply the flattened files, font's (assuming they are paid for), and layout files needed to facilitate the print job? Further, are they entitled to repeat that print run without paying royalties. By default I understand the law to require this relesae in writing otherwise all is owned by the artist. We do not ever release layered files as we feel they are full of design tricks etc. that are unique to our companies talent pool and therefore protected by Intellectual property law. We do have a client currently asking for what they perceive as their layered files. We are standing our ground.
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I am unable to download the entire article. When I click on the pdf it only
shows me one page. What am I doing wrong? -
http://www.aiga.org/resources/content/2/4/5/2/documents/ch22_crawford.pdf
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I don't see anything about using created works (in the category of "work for hire" in developing a professional portfolio. Do you have experience in this issue and can you comment?
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thanks Jonathan for the link.
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Anyone have any suggestions on how to deal with an advertising agency that stole my work for use in their ads?
I can't tell you how disappointing this is but I am learning. I am glad that AIGA has standards, I just the rest of the country would honor it. Hopefully, there people here that have my back like I would theirs. -
I have recently run into a situation with my previous employer regarding my use of works I designed wile at that agency. I have them posted on my portfolio site, which he found, and is now threatening charges for 'theft of services'?
Any one have any idea if this is a valid argument? I have never run into this before and every other artist I know displays previous agency work in their portfolio. -
I was wondering if it is customary for a photographer to hire an individual (model) and have them sign a contract before they are told the company they are representing and how the pictures are to be used. The reason I am asking is that a photographer saw pictures of my daughter on-line (she is 17 just beginning her modeling career)and would like to hire her, but has told us that we can not know the actual company the shoot is for. It does not seem on the up and up! If any one could help me with this I would really appreciate it.
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David, i'm having the same issue as you. my previous employer i trying to pull the same crap with me, going so far as to have their attorney contact me. i'm thinking this is completely outrageous -- especially since i worked there for MANY years and they're the ones who laid me off. what? did i just not work for all those years?
have you had any luck finding out more? does anybody know anything? -
I am designing a logo for someone, and i purchased a typeface for the logotype. Is purchasing a typeface enough to avoid copyright issues when using it for the logotype?
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David
I'm researching this issue and stumbled upon this thread, but have yet to find any definitive statements, one way or the other. Did you resolve this issue, and if so, what entitlements are you allowed? -
W. & David — I am researching another issue regarding copyright & trade dress and stumbled on this link as well. If you haven't yet, you might want to check out the "Work for Hire" and "Fair Use" sections in the doc posted by Jonathan on Jan 6. You might also find the following article helpful: http://suw.org.uk/freelance-journalism/who-owns-your-portfolio/
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Looking for advice on using name brand products/packaging in photography and how (if at all) it relates to trade dress or copyright and fair use ...
We have shot photography using a brand name product as a prop. The product is not the focus of the photo, is turned and partially covered up so no trademark is visible (only the back/bottom quarter is visible). This product is highly discernible, however, as it is a familiar American product: you can tell what it is even though no name is visible & so little of the package is showing.
It is important for the success of the photo that consumers can tell what kind of product the prop is (which is why we used the discernible item in question).
We are getting push-back from our client that legally we need permission from parent company of prop to use the product in the photograph at all.
(notes: This is for consumer retail / FOR PROFIT. We also own all photo rights)
Anyone run into this? Thanks! -
I received a notice yesterday from Masterfile that an image of theirs is being used in my portfolio on my website and they have no record of me licensing the image. I had contracted usage directly with the photographer of this particular image and now I have to spend my time and $$ tracking down that invoice and contract.
It brings up the question though. Can we display work in our online portfolios that uses stock photography without violating their copyright?
Either way. I will never license an image from Masterfile. -
Note to Amy,
I did an ad that used "the club" anti theft device in part of the image. I contacted them, sent them a comp and they gave me permission to use their product and supplied me with a nice product shot for use. I think all they requested was a 4pt byline with their copyright in it.
I would say that if it is a generic product that is made by many people, you shouldn't have an issue. But if the look and feel of the product is particular to a certain company, you should probably get permission from them.
I am not a lawyer though. -
David & W - I ran into a similar situation. I put work created while an employee of a company on my website. The company allowed me to keep the work on my web site as long as I noted it was created while employed at that company. I did that, but as son as I had enough new work I took that work down and only showed it in a physical portfolio.
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On another topic, one of our client's assets are being bought by another company. From what I can tell this does not include the transfer of right of our designs we created for our company. Has anyone been in this situation? Thanks in advance. -
David & W.
Have either of you resolved your issues with former employers attacking you for your portfolios? I am having the same problem, I left my position and was given papers from my former employer's attorneys to take down my online portfolio as they claim I have no authorization to use the designs.
I do not have a copy of my contract with them, however since I was in a manager position, I have copies of co-workers' contracts and there is definitely a statement that says all work is allowed use in portfolios. Since I'm waiting for my attorney to demand a copy of my contract (and hope they didn't Photoshop it), I don't want to count on my contract entirely to get me out of this.
I'm hoping either of you have some advice or good news about your situations to give me some hope!
Thanks Christy for your post, I will never get permission from my former employer. She is only doing this out of retaliation because I quit. She's very upset that I left and this is her way of trying to punish me.
Thanks! -
I own a graphic design firm that has worked for years for a particular client. Recently they have requested all native files for a number of brochures we designed for them. I do not have any contract with this client. My position is that we own the files. Their position will be that they paid me and that's part of what they paid for.
I probably will give them the files so there's a chance for future work. However if I do we will also lose work, they will probably update brochures themselves.
Do they legally have the right to demand files? If no contract is in place who owns the files? -
I have the same question as Abe (Nov. 2). "I am designing a logo for someone, and I purchased a typeface for the logotype. Is purchasing a typeface enough to avoid copyright issues when using it for the logotype?" I'm looking for Adobe's position on this in particular. They have not responded to my inquiry. Thanks in advance.
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David, W., and Samantha,
I too ran into an issue similar to yours. Earlier this year, I lost my job at a design firm, and on the day I left I was told that "as I was working on my website, would I please credit the firm." I was happy to do so, since the firm is well-respected, and since I grew tremendously as a designer while employed there.
Several days later, something changed in their thinking (I never found out what changed their minds), and they notified me that I did not, in fact, have permission to show work done at the firm on my website, regardless of how clear I made the written project description and the role I played.
So here I am left holding the bag, with mouths to feed and no work on the horizon in the worst economy since the Great Depression. I was told that it was fine to show work I did at the firm in meetings and interviews, but not online. This seemed ridiculous to me, since it's nearly impossible to get one's foot in the door anywhere without having an online portfolio. Nearly all my best work had been done during my tenure at this firm, and without that work I had almost nothing to show.
I contacted a copyright attorney with many years of experience, since this subject is hotly argued in our profession and clear rights for design firm employees have not been satisfactorily addressed in this digital age. My attorney told me that since (a) I had no contract in force with the firm, (b) I was not soliticing the firm's current clients, (c) I was being clear and honest in all project descriptions, and (d) having a portfolio is a necessity in this profession for advancement, I was in the clear and could proceed against the firm's will.
This of course meant that I would have to choose between honoring the firm's request (and thus taking a big hit on my self-promotional ability), or burning that bridge and doing what I felt was necessary for my career.
So, I opted for the latter. It's my understanding that if you sign some sort of contract that gives away all your rights, you have no recourse, and your former employer can come after you. Anyone can of course sue anyone for any reason, but having a contract in force can totally negate an employee's self-promo rights, especially if it includes specific prohibitions against self-promotion.
In short: ask for permission. Most reasonable firms will grant your request, as long as you're doing everything on the up and up. But if they deny you, and no contract binds you, then you have to weigh the cost of losing that relationship forever.
I've since started my own firm. It's still in the very humble beginnings, but nine months in we're profitable with a growing list of clients. My website still reads as the portfolio of a designer-for-hire, rather than the official website of a design studio. As soon as I have enough solid work to replace the projects designed at other firms, I plan to ditch the old stuff in favor of work done for my own clients.
You'd better believe my contracts have clear retention of self-promo rights. ;) -
... I should also add that I learned a valuable lesson here about how to treat people. It's only me and my wife these days, but whenever I hire someone to work for our studio (either freelance or full-time), I will most definitely grant them permission to show work online. It's their livelihood too, after all—not just mine. Plus, any free cross-promotion I get out of the arrangement is welcome.
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