Do the Right Thing

Print-usage rights do not equal Web-usage rights. Here’s how to avoid legal snares when you’re designing online.

Just as you’re wrapping up an intensive annual-report project, your client calls with an urgent request that you develop an electronic version to post on the company’s Web site. “No problem,” you say. “We have all the copy and images from the print project; we’ll just dump them into an online edition.”

But there is a problem. Unless your agreements with the copywriter and photographer you hired for the job specifically grant electronic rights in addition to print usage, there’s a big problem. Although a frontier-justice mentality applies to much activity on the Internet, copyright law applies as definitively online as it does offline. If you want to use someone else’s work on the Web, you’d better be sure you have the legal right to do so.

Copyright 101

U.S. copyright law provides a copyright holder with a bundle of five rights: the right to reproduce her work, the right to make derivative works from it, the right to display the work and the right to distribute it. (The fifth right, which doesn’t apply to visual creations, is the right to perform it.)

These five rights enable designers or any creators of original work to make money from their endeavors. The copyright holder determines when and how her work can be copied and reproduced. Each type of reproduction of the work is a separate—and compensable—usage right. For creatives, selling these rights is an important part of making a living.

Print Rights Don’t Equal Web Rights

Like any other creative endeavor, the business of buying and selling original work has created subcategories of reproduction or usage rights. For example, a songwriter can sell both mechanical rights and synchronization rights to a song, depending on whether the music is being reproduced on a CD or in a film.

In the design business, the right to reproduce or display artwork also depends on the form the reproduction will take. Unless you purchase all rights to an image, your use of that image is limited to a single, specific purpose. The right to use an image in print is one reproduction right. The right to use an image on a Web site is a separate right.

Buying print rights does not give you electronic rights or animation rights or vice versa. Buying one particular use for one year does not grant you further uses three years later. Using images for purposes other than those for which they are authorized is copyright infringement, pure and simple.

These copyright restrictions aren’t limited to photos or illustration; they cover graphics, text, music, animation, video, audio and other components of an attractive Web site. If you didn’t create it, you need the permission of the person who did before you use it online.

The rules apply to your own firm’s self-promotion Web site, too. Naturally, you’ll want to showcase your print projects and other client work online. But if any of those designs include photos or illustrations created by other people, make sure your agreements with them allow you to use those images on the Web. If not, you’ll have a problem.

The same holds true for digital portfolios. If you’re a job-seeking designer showing your own creations in an electronic format, for example, you need your employer’s (or ex-employer’s) permission to use them in a portfolio, on the Web or otherwise.

Use Protection

Making sure you have the right to use a copyrighted work in a certain way is critical to avoiding legal liability. The best protection is to get it in writing whenever you hire an outside creative to produce work for a Web project—or any project, for that matter. A written contract protects both parties. It ensures that the designer has the appropriate rights she needs for a particular project, and it enables the photographer, illustrator or copywriter to protect his work by controlling usage.

Although non-exclusive usage rights can be granted verbally, such agreements are difficult to enforce if there’s a dispute. The Graphic Artists Guild has an excellent contract that specifies uses, terms and conditions. As the designer making an assignment, carefully read any contract to be sure it defines how the work will be used. Negotiate electronic rights and fees if they’re not covered.

Will Work For Hire

A work-for-hire arrangement is another way designers can avoid rights problems with commissioned work. It may be difficult to find a freelancer who will accept these terms, however, as many artists, along with the Graphic Artists Guild, frown upon work-for-hire contracts. That’s because the hiring party, not the artist, owns the work created and can use it at will.

Such agreements must be in writing, and the document must specifically state that it’s work for hire. And because the artist relinquishes all ownership rights to the buyer, the buy-out price for a work for hire should always be higher than the price for individual usages.

Simply hiring someone to take a photograph, for example, does not make the photograph a work for hire. In fact, the opposite is true: Without a written agreement, the rights remain with the photographer.

Law on the Digital Frontier

Much to the chagrin of proponents of the “information-should-be-free” school of Internet law, copyright protections do extend to the Web. Copying images that don’t belong to you and using and manipulating them for any commercial use on the Internet is infringement, just as it would be in the print world.

Unless the law changes, make sure your usage agreements specifically include online rights in case you need them. Better safe than sorry.

HOW December 2000