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Frank Martinez is special counsel on copyright and fair-use issues
for AIGA. Frank has considerable experience in copyright, trademark
and patent law; he was responsible for typeface design issues at
the U.S. Patent Office; has worked with design firms and typeface
designers; and teaches in the graduate program at the School of
Visual Arts in New York.
Under U.S. copyright law, the designer is the owner of all files
and artwork created for the client, and the client is the owner of
the end product (i.e. a printed business cards). Release of
electronic files to the client is at the discretion of the designer
and is determined by the type of project. Copyright ownership may
be transferred to the client for a fee that is based on the uses
for which rights are being transferred. This is specified in a
proposed agreement for the design of an identity system.
The client returns the proposed agreement with the copyright
section crossed out by the client and with this added: “The work to
be performed shall be considered to be ”Work for Hire“ and all
Copyright Ownership related to this work shall completely reside
with the Corporation. All electronic files developed during the
process of the work are the property of the Corporation. The
designer can display this work for portfolio or self-pormotional
purposes only with the express written approval of the
What should I do?
In a perfect world, a designer should be in control of how he sells
his services. As a practical matter, however, very few businesses
will grant a third party the right to control its identity and it
There are a number of conflicting issues in this case, starting
with two polarized legal realilties. First, the identity a designer
creates becomes a trademark of the company. It is a fundamental
principle of trademark law that all trademark rights arise through
use in commerce. Thus, all trademark/commercial rights will belong
to the company, not the designer.
Second, under copyright law, an independant contractor (freelancer)
is able to control how he transfers ownership, if at all, of his
work. This right includes the right to license the work for
specific uses. So, even if a designer were to retain ownership of
the logo, he will have no right to use the logo or sell it to
another party since the designer does not have rights to sell or
license a trademark. The designer?s rights are limited to the mere
appearance of the design. In addition, it is highly likely that a
court will find an implied license, from the designer to the
client, to use the work in any commercially reasonable
Choose your battles wisely realizing that generally transferring
all rights should incur a higher fee.
Ask yourself this question: What is the type of work and do I
really believe there is a value to me in keeping the rights over an
extended period of time? If the work is in the nature of a separate
animation element, a dingbat or other easily separable work, it may
be re-usable. Many websites or complex printed matter (templates)
will contain elements that can be reused in other ways. An
identity, on the other hand, does not lend itself to repurposing.
Some clients will try to limit the designer's rights because of
concern that competitors will seek to use the same look. As a
designer with professional ethics, be mindful that whatever the
terms of your agreement, you have an obligation not to undermine
your client, i.e., you can't sell the same or similar work to
another client and in some cases it might not even be wise to work
for a direct competitor of a client unless the scope and/or look of
the work is quite different.
In connection with this, be wary of contract terms which absolutely
limit your ability to provide services for a client's competitors.
Limitations on your ability to obtain work should require
I would not realisticaly expect to be able to own or control the
use of an identity or any work related to it since you really
cannot use it afterwards. As a commercial matter, no corporate
counsel would allow such an agreement. You might try to get a right
of first refusal as regards creating versions or updates to the
work, but anything more is probably not feasible.
Regardless of the extent to which you want to retain the rights of
your logo design, I would always urge a designer to retain an
absolute right to show work in his portfolio or in advertisements
for his services. If a client wants to remain anonymous, let him
pay for that privilege. Your portfolio is the only proof of your
In all circumstances I would retain a digital copy of the work
simply as a wise business practice. You should archive a copy and
if the client or the printer loses theirs and they insist on full
ownership, charge them a service fee to replace it (a fee that
should be stated in your agreement).
...First published in Gain 2.0:
AIGA Journal of Design for the Network Economy.
AIGA is proposing to use the Adelphi Charter developed by the RSA as a guiding framework for our position on intellectual property law. Share your thoughts.
Section: About AIGA -
AIGA Insight, copyright, legal issues
Reproduction rights are getting harder to obtain. Heller asks attorney Frank Martinez some pressing questions about intellectual property and fair use.
Section: Inspiration -
interview, Voice, design educators
One of my biggest worries in the design business
is where the next client will come from. It was a worry when I started, and
it’s a worry seven years later—albeit to a much lesser degree. When
one approach to bringing in business doesn’t work, you need to learn from the
experience and move on to the next idea.
Section: Tools and Resources -
advertising, freelancing, job search, networking, advice
Is the current Art Directors Club call for entries a bad idea? Heller examines what happens when, given a sensitive racial theme, design irony isn’t funny, but alienating.
Section: Tools and Resources -
Voice, Diversity and Inclusion, branding, identity design, ethics
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