Here, Neil Tortorella offers a brief overview of design copyright law and intellectual property rights for creative professionals.
As a graphic designer, copyright is vested with the creator (you) upon completion of the work (logo, brochure, infographic, etc.). This means that as the creator of a work, you own copyright even without formally submitting a copyright form to the Copyright Office. However, judgment awards for infringements are often for larger amounts when the work is formally registered by submitted a Form VA (Visual Works).
Registration gives you two important protections: the right to recover your attorneys’ fees when you win the lawsuit, and the right to an award of statutory damages. Statutory damages means you can be awarded money even if you cannot prove a monetary loss.
Registering your work will set you back only $35 for a basic claim filed using their online system. If sending in a paper form, the fee is $85. Online is usually the best bet. It’s a lower fee, processing is faster and you can track your registration’s progress online. The Copyright Office accepts credit or debit cards and electronic checks. They also offer a Copyright Office deposit account.
Here’s a handy copyrighting tactic: You can file several works under a single application. You might consider filing a group of works as something like, The Collective Works Of I.M. Greatdesigner, January – March, 2016.
When you sell your design to a publication, it’s important to understand what you’re actually selling. More often than not, you’re not selling the design, itself. You’re only selling the right for some entity, (e.g.: a publication, business client) to publish it. At least that’s should be all your selling.
A freelance designer or illustrator might sell a project to a magazine or other type of periodical. The publication normally buys first serial rights. This means they buy the right to publish your work for the first time, in any periodical, anywhere. Usually though, this right is modified geographically and often by language.
For example, you may have seen First North American Serial Rights (geographic) or First English-Language Serial Rights (geographic and language). After they publish it, it’s yours to re-sell and publish again with a different publication. The subsequent publication would buy Second Serial Rights or Reprint Rights.
And therein lies the beauty of copyright—Create once. Sell often.
How handy is that? It’s a first cousin to passive income. At least it can be for a sales-savvy graphic designer. It’s pretty obvious that selling all rights is usually a bad deal for designers. The buyer of all rights can publish your hard work anywhere and as often as they like. To make matters worse, they can also license your work to someone else. You know, like the client-type who stands to make a bazillion bucks off your work. The lesson here is: Don’t do that.
It’s important to note that copyright can also be used as fee negotiation tactic. If a client doesn’t need full rights, perhaps you can negotiate a lesser fee with lesser usage rights. Then you’re free to resell the work somewhere else. One piece of the copyright pie is your right to create create derivative works. If, for example, a client needs thus and so and another needs something similar, you could create a derivative work. It could be less time in design and production and provide higher profit. It’s a good idea to keep things non-competitive, though.
Here’s another life lesson for you: There are people out there who are less than scrupulous, want to make money off your work and will seemingly offer you the world while sticking a very large, sharp knife in your back. Yeah… I know, it’s hard to believe, but true nonetheless. Here’s an excerpt from the chapter on legalities from my book, Starting Your Career As A Freelance Web Designer, using a Work for Hire clause and a Web designer as examples.
Signing a work for hire agreement is never a good idea for a freelance Web designer. If your client presents you with a contract for their site design and development, read it carefully to ensure you aren’t giving away your rights without adequate compensation. Beyond compensation, if you sign a work for hire agreement you’ll also lose the right to show the work in your portfolio and marketing materials, the right to enter the work in exhibits, shows and competitions and the rights to anything else. Your client will own your work, lock, stock and barrel.
If a client tries to get you sign a work for hire agreement, it can be at best, unethical and at worst, illegal. The copyright law doesn’t discriminate between ethical and unethical practices. Some unscrupulous clients will knowingly seek to abuse your rights by denying work to those who do not accept work for hire. Others will designate work as work-for-hire after the fact by requiring the freelancer to sign a purchase order or check with work-for-hire terms in the endorsement area.
Another shady practice is work-for-hire contracts, understood by the freelancer to apply only to the current project, but may actually have language that covers all future work. Be aware that “work for hire” may not be specifically written in the contract, but it’s buried in confusing legalese.
When reviewing a contract, look for phrases similar to the following:
- The phrase: “All rights in all media now in existence or invented in the future in perpetuity throughout the universe.”
- Contractual work-for-hire language found in random documents, such as on the back-side of paychecks. Clauses buying all electronic rights: Electronic rights is still a dodgy area.
- Some publishers will publish a designer’s work in print and also in an electronic form (e.g. Web versions of the publication) but only paid for one-time use or serial rights for the print version.
- Multi-year non-compete clauses
- The words “silent partner,” clients who claim there was an “implicit,” or implied work for hire agreement, prior to the start of work, when none existed. If the work is deemed not to be work for hire, watch out for language in the contract that provides for an “all rights” transfer.
[Read more about design contracts in the Fall 2016 Issue of HOW Magazine.]
Understanding your rights as a freelance graphic designer is the first step toward enforcing them. In talking to many freelancers, I noticed that many have little knowledge when it comes to protecting their rights. All it takes is one incident to make a designer’s life an expensive adventure in the court system.
I know several creatives who have had their hard work blatantly ripped off. I have, too. It’s not a fun experience. In today’s overly connected world, stealing a creative’s work, especially online, is pretty easy—just a right click of the mouse. One guy swiped one of my popular blog posts. My readers tipped me off. When I emailed him, he freaked out. Apparently, he didn’t think anyone would notice. Fortunately, the issue was resolved amicably.
Another time, a person ripped off my entire website. Yes, you read that right. Everything, right down to the “About” page. All he did was take out my name and insert his. That incident didn’t turn out as well for him as the previous person.
Understanding and policing your rights and your work is one more thing for a freelance designer to manage. But, keeping a finger on your copyright pulse is a lot easier than taking legal action for an infringement.
Copyright Resources For Graphic Designers
- To download Form VA (Visual Arts) from the U.S. Copyright Office website, visit: www.copyright.gov/forms/formva.pdf
- LegalZoom is also a great source for information. Their Copyright Assignment & Guidelines (pdf) can be downloaded here.