Designers face an increasingly complex landscape when it comes to copyright and intellectual property. When a single idea or concept can be expressed or utilized in dozens of different formats, platforms and mediums, how can creators control ownership and usage of their work? Even a simple idea like ownership can become complicated, when the work in question is not composed of atoms, but ideas.
Intellectual Property: The Basics Explained
First things first: Is the work yours? In most cases, the answer is straightforward. When you make something, you are the author and owner of that work, with a wide range of rights and privileges that you control, unless and until you transfer that ownership to someone else in writing. Once you’ve been dead for 70 years, all (well, most) bets are off; your work enters the public domain for all humanity to use and enjoy. So being the creator of a work makes it yours, automatically. But should any problems arise, you will need to prove it.
Registering a copyright is the simplest way to protect yourself from someone else using, copying or making derivative (imitative) versions of your work without your permission or proper compensation to you.
Copyright is the government’s official recognition of author/ownership. You can register your copyright at any point, but the sooner you register a work, after it’s created and before it’s made public, the more complete the benefits and compensation you might receive for any misuse of your work. Everything you need, and need to know, can be found at copyright.gov, and in most instances, registration can be completed online for as little as $35.
Registering a copyright for your work establishes who owns it, at a specific point in time, clearly and bindingly. Copyright law then addresses what constitutes a violation of this ownership, distinguishing between “fair” and “infringing” use. As you might have guessed, this is where most legal wrangling occurs: Is the use in question OK or not? Copyright doesn’t protect your work from being used at all, it just protects it from being used unfairly. Fair use includes copying a work for such things as news reporting, education, commentary/criticism or research. Of course, wherever there is a line drawn, the exact location, shape, and nature of that line will be scrutinized and challenged. Or even cheated.
When it comes to unfair usage, there are obvious transgressions that are relatively easy to call out — a business reselling your work as their own, for example. Copyright infringement is when someone uses a copyrighted work without permission, or in a way that violates the terms of an agreement or license. You may have granted permission for a work to be used on a coffee mug, for example, but not in a TV commercial. How the work is used, or re-used, also is a factor in determining whether or not a violation has occurred. Either way, it is up to the copyright holder to enforce their rights.
In most cases, this can begin and end by simply contacting the offending party and alerting them to the fact that the work they are using is actually owned by someone, and that owner would like them to stop using it. Often the offense is entirely innocent, as in the case of a blog or magazine receiving content they were told belonged to the submitter. Once notified, most responsible businesses will chose to simply take down the material, rather than face possible legal damages. Unfortunately, this is not always the case.
Intellectual Property: Some Designers Fighting For Their Rights
“I’ve been keeping track of infringements (the ones I’m made aware of at least) actively since 2008. I’ve had well over 200 incidents and about a dozen I had to get my copyright lawyer involved in,” says Von Glitschka of Glitschka Studios in Salem, OR. After being alerted by a fellow designer that his designs were showing up on LogoGarden.com — a site offering customers “Professional logos in 3 clicks. No design experience required.”
Glitschka investigated and found 35 of his logos being sold on the site. The work was eventually taken down. Glitschka has been proactive about battling infringement, documenting the experience on his blog, drawsigner.com. “The whole process is a major pain,” he says. And once lawyers get involved, the situation can escalate — often in unexpected ways.
Before action can be taken, though, the violation needs to be identified and confirmed. Large content creation companies often keep a staff of copyright lawyers busy researching such violations as part of doing business. We’ve all raised an eyebrow at Apple’s rigorous pursuit of perceived violations. But how can small design firms or solo artists police the vast frontier of the web? Jeff Fisher of Jeff Fisher Logomotives in Portland, OR, who has also allegedly had issues with LogoGarden.com, suggests trying Google’s Reverse Image Search function. “I was amazed at the results,” writes Fisher. “Where TinEye.com (reverse image search) might have found up to ten online displays of one of my logo designs, Google’s search would find 100 to 350 examples of one of the identities being displayed on blogs, in design galleries and elsewhere.” Still, it’s not foolproof. “Eliminating any text from a logo design provides additional examples of plagiarism or unauthorized use of images,” he explains. But finds that “Some results of the image search are simply odd.”
The same power and accessibility that the web gives to violators can be used to unmask and pursue infringements. When the push-back is strong, and well-funded, the result can escalate into a “David vs. Goliath” scenario. Robynne Raye and Michael Strassburger of Modern Dog Design Company in Seattle, WA, found themselves in this situation, finding that artwork from their book, “Modern Dog: 20 Years of Poster Art,” was used on T-shirts without their permission. The ensuing legal battle has escalated, with the firm selling their studio to finance the fight, which then prompted the creation of friendsofmoderndog.com to raise the necessary funds. The outpouring of support has been remarkable. “We even surpassed our original goal by over $1,000,” says Raye. “We are still in shock that it happened. I’ve never heard of a company in our situation that has done a crowd sourcing fundraiser. Without this help from our friends and the design community, it would be difficult for us to build a strong case.” For Raye and Strassburger, though, the battle is about making a statement. “We hope we can be an example of how a small company can fight back when going up against larger companies with seemingly unlimited resources. [But] we believe in the justice system and think we will prevail, even if it means we go all the way to a jury trial.”
Copyright law is far from simple, or perfect. Still, the laws that are in place are designed to help you claim, and retain, ownership and control over your work. This is a subject that all creative people have a vested interest in. It’s time for all designers to learn more about protecting their rights.
Additional Resources for Graphic, Web Designers
- “Ethics: A Graphic Designer’s Field Guide” dives into legality, integrity and morality in the graphic design industry, providing valuable case examples.
- “AIGA Professional Practices in Graphic Design” is written by industry experts and can serve as your guide to many issues, including copyright and trademark, fees and contracts.