There are a lot of myths and misconceptions when it comes to copyrights. Particularly, in professional and business scenarios. In this series of posts we’ve discussed copyrights in general, and specific aspects, such as fair use, works made for hire and the first sale doctrine. So, in this next series of posts we will discuss exactly that. Starting with copyright basics for graphic designers.
Graphic design.
La Merriam-Webster dictionary defines graphic design as “the art or profession of using design elements (such as typography and images) to convey information or create an effect.” Graphic design is also defined as “the product of this art.”
Copyrights and graphic design.
Most likely, the creative work of a graphic designer will be eligible for copyright protection. But, who owns the copyrights? Is it the designer, the designer’s employer, or the client? Which rights are transferred or reserved? Who responds in the event of infringement? This is were contracts start to come into play.
Ownership.
Every employer/employee relationship needs a contract. In addition to all the labor and employment law aspects, this contract has to clearly set forth language regarding intellectual property rights. Specifically those relating to works created under the scope of employment.
By the same means, every relationship with a client needs a contract. The contract should set forth who will retain copyright ownership over the work. Will it be the designer or the client? If the contract does not establish this, copyright ownership will most likely remain with the designer. Additionally, if the copyrights are to remain with the designer, the contract should set forth for what purposes the work may be used or what rights are being transferred.
Rights.
Copyright is made up of specific exclusive rights belonging to the copyright owner. These are the right to: reproduce the work, distribute the work, create derivative works, exhibit and/or publicly display the work. All of these are discussed in our “What is a copyright?” post, and they can be sold or transferred, and they can also be limited.
As a graphic designer, it is important you know which rights your are reserving for yourself and which ones you are selling or transferring. For example, are you selling the right to use the design in print or digital form, or both? Is this right conditioned or limited? Most likely, your fees will vary depending on the rights you are transferring, conditioning or limiting. These are the type of details that need to be set out in the contract. This is why contracts are so important.
Copyright infringement.
Infringement is another way to say violation. Copyright infringement occurs when copyright’s are violated. How does this happen? It can take many shapes and forms. It will happen when someone uses your work without your permission or you use someone else’s work without their permission.
This type of permission is known as a right. The copyright owner is the only one who can give the right to use the work. Yet, another reason why contracts are important. The contract will set out the terms. It will state the rights granted, as well as any limits or conditions.
One example of copyright infringement is when you lift an image from a website thinking, “if it’s on the internet, i’m free to use it”. This is a common fair use misconception. Just because something is accessible, does not mean it is free to use or copy it. Or, you might just be inspired by someone else’s work. Watch out! In some cases, works inspired by others might be too close for comfort. In instances of infringement, the aggrieved client will most likely seek compensation and damages from you.
Author: Patricia Ramírez Gelpí, J.D., LL.M
Image: blackzheep/Shutterstock.com
