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Copyright is the exclusive right to control reproduction and
commercial exploitation of your creative work. Copyright protects
any kind of artwork, including illustrations, photographs and
graphic design. Except under certain circumstances (see “work made
for hire” below), you own the copyright in your work at the moment
you create it in a “fixed” form of “expression.” A fixed form of
expression is any tangible medium that can be perceived by humans,
including traditional forms—such as paintings, sculptures,
writings—and new forms that require a machine to perceive (e.g.,
GIF files, CDs, websites).
Generally, the person who creates a work is considered its
“author” and the automatic owner of copyright in that work under
copyright law. However, there is a limited exception under the
“work made for hire” doctrine: if you are an employee, your
employer is considered the author and automatic copyright owner of
any work you create within the scope of your employment. In most
cases, this doctrine applies only to full-time employees. If you
are doing the work as an independent contractor, your work can
legally be “work made for hire” only if your contract specifically
says so, and your work fits one of a few narrow categories, e.g., a
contribution to a collective work such as an encyclopedia, or a
compilation work, such as a website.
When you perform graphic art services for a client, your client
is paying for rights to use your work under your copyright.
Identifying the scope of such rights can be the most important part
of your contract with your client.
You own your copyright unless you sign a written assignment
giving copyright ownership to someone else. In that case, your
contract with your client will say something like you “assign all
rights, including copyright.” But you can also give (or lend) your
client just a piece of your copyright. Copyright is really a
“bundle” of several different exclusive rights. For graphic
designers, the relevant exclusive rights are the rights to (1)
reproduce, (2) display, and (3) make adaptations (“derivative
works”) based on your work. Each exclusive right in the copyright
bundle can be owned separately. For example, you can give a
newspaper the exclusive right to reproduce your comic strip, and
you can keep the exclusive right to adapt the strip for an animated
film. Moreover, you can give permission, or a “license,” under any
of the bundled rights on a nonexclusive basis. For example, under
your reproduction rights, you can grant a publisher the right to
reproduce your painting as a book cover, and you can keep the right
to reproduce it as a giclee print.
Frequently, your client will want to own your copyright. That
means your client will own the entire bundle of rights, and you no
longer have the right to control how often, or in what manner, the
work is used. This is not always necessary or appropriate.
Generally, it is better for the scope of the license to closely
track the client's intended use of your work. For example, suppose
you are hired to do a spot illustration for an article in a weekly
magazine. Your fee is the standard, reasonable amount for that one
time use. However, if your contract assigns copyright to the
magazine, the magazine can use your illustration again, for
example, it might adapt the illustration to create a logo for an
ongoing weekly column, without any further compensation to you.
On the other hand, if your contract grants a one-time license to
reproduce the illustration, the magazine must seek your permission,
in the form of another license with another fee, before it can
legally adapt your illustration for the column logo. This is true
even if your license to the magazine is exclusive, that is, if you
agree not to allow any other entity to publish the illustration.
The magazine's rights would still be limited to the one-time use
identified in your contract.
Another important reason to retain copyright is to ensure that
you have the right to create similar works for other clients. If
you assign copyright to one client, and then create a similar
illustration for another client, the second illustration could
infringe the first client's copyright in your earlier work. For
example, in one case a jury found such infringement with respect to
greeting cards that the same artists had created for different
Obviously, for some types of work it is appropriate for the
client own your entire copyright, for example, corporate identity
packages, logos, websites or any other works that are intended to
have an ongoing, exclusive marketing presence for your client. It
would not be appropriate for you to re-license that kind of work to
another client. In such situations, you should ensure that you have
the continuing right to display and reproduce the work in your
print and online portfolios; otherwise, you no longer need to worry
Copyright infringement happens whenever someone makes copies or
commercially exploits a work without the copyright owner's
permission. The second work must actually be copied from the first
work—if you just happen to create a very similar work
independently, that is not infringement. The problems arise when
one artist uses another artist's work as reference. To be
infringing, the second artist's works need not be identical. The
standard for infringement is whether the second work is
“substantially similar” to the original work. (Contrary to popular
belief, there is no “20 percent rule,” i.e., you cannot escape
infringement by changing something by 20 percent. Infringement is
not a mathematical calculation.)
“Substantially similar” means that an average person viewing the
two works would recognize that the “artistic expression” in one was
copied from the other. The focus on “artistic expression” is meant
to distinguish between illegal copying, which is infringement, and
being inspired by someone else's work, which is not illegal.
“Artistic expression” means the specific artistic choices and
details that go into a work, such as composition, rendering and
colors, but not general concepts such as subject matter or similar
artistic style. However, courts often describe infringing works as
having the same “look and feel” as the originals. Sometimes work
depicting similar content in the same unique artistic style are
held infringing, even if specific details are different.
Unfortunately, infringement is a common occurrence in the
graphic arts. Here are some examples:
Many designers are surprised to learn that infringement occurs
even when you merely copy someone's work for intermediate purposes,
as in the following examples:
Any person or entity involved in the unauthorized use of a
copyrighted work, from the initial copying through publication and
distribution, is liable for infringement. For example, in one case
where a photograph was used in a comp without permission, the
photographer sued the ad agency and the agency's client for whom
the ad was created. The court awarded the photographer $2,750 in
actual damages (the fee he would have charged had he been given the
final assignment), $57,358 for the ad agency's net revenue earned
from the project, his attorneys' fees and an injunction preventing
further use of the infringing ads.
“Fair use” will excuse an otherwise infringing use under certain
limited circumstances. The courts balance several factors to
determine whether a particular situation qualifies as fair use.
Generally, non-commercial editorial or educational uses will be
fair use. Parody will also qualify, but only if the work directly
parodies something about the original work. For example, a Los
Angeles federal court rejected the fair use defense for a parody
entitled “The Cat NOT in the Hat! A Parody by Dr. Juice,”
which used verses and artwork reminiscent of Dr. Seuss to mock the
O.J. Simpson trial. The court did not believe the book also
critiqued Dr. Seuss.
“Transformative” works may also be fair use. A work is
“transformative” when the copyrighted material is “transformed in
the creation of new information, new aesthetics, new insights and
understanding.” Under this standard, a New York federal court
recently held that a collage-like painting by Jeff Koons, which
incorporated an image copied from a fashion photograph with other
disparate images, was fair use.
Even though you have copyright ownership as soon as you create
your work, under U.S. law you have no rights to enforce your
copyright until you register. Generally you must have filed for
copyright registration before the infringement occurs in order to
have the full scope of copyright protection (the exception is if
you filed within three months of the first publication of your
work; in that case, you have full protection even if the
infringement occurs earlier). Full protection for such early
registration gives you two important remedies: the right to recover
your attorneys' fees when you win the lawsuit, and the right to an
award of statutory damages. Statutory damages means a jury can
award you an amount of money even if you cannot prove the
infringement caused you a specific monetary loss. (Currently, the
law sets a minimum of $750 and a maximum of $150,000 in statutory
damages for willful infringement.)
Many artists know that they cannot afford litigation, so they
believe these advantages of early registration are not relevant.
However, in most cases it is the possibility of a lawsuit, rather
than actual litigation, that gives you the bargaining power to stop
an infringement, and often, obtain a monetary settlement. When
defendants receive a letter raising an infringement claim, their
first step is to determine whether you have a copyright
registration that predates the infringement. If you do, they know
that you are entitled to sue them for statutory damages and recover
your attorney's fees. Your registration enhances their risk of both
defending a lawsuit and incurring monetary damages, so they are
motivated to settle. On the other hand, if they learn that you
don't have an early registration, most infringers assume that you
will not be able to sue them, and they will be less inclined to
negotiate in good faith for a reasonable settlement.
There is no substitute for early registration. (Contrary to a
popular myth, there is no “poor man's copyright”—putting a copy of
your work in an envelope and mailing it back to yourself will not
provide any legal protection.) The best practice is to register any
work that will be seen by the public or potential clients,
including your portfolio and websites. Unauthorized copying is
temptingly easy, and infringements are common. Early registration
is the best proactive step you can take to ensure that you will
have the full power to react in the unfortunate event that your
work is infringed.
First published in STEP Inside Design, July/August
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