How do copyrights work with graphic designer work?
If the graphic designer creates work while employed at a design firm, is it necessary to put the firm's name on every piece in the designer's online portfolio? I am assuming no, since this information would be discussed in an interview, but could use some legal advice on intellectual property.
Thanks!
Clarification added July 28, 2008:
Thanks for all the wonderful responses. I am a designer, but was asking for a colleague of mine. She recently received a letter from a former employee's lawyer telling her that if her work did not include the firm's name or was taken down immediately that she would be charged for damages. I was curious about what legal rights she had to the work she completed while under their employment.
As a design firm, their portfolio does not give credit to the photographers and freelancers they work with, how is this different?
Answers (14)
If a graphic designer creates a work for a design firm the copyright in the work typically belongs to the firm rather than the designer. My wife is a graphic artist and her portfolio is full of works she prepared for her employer. Putting the works online adds a degree of difficulty to the situation.
There is a copyright doctrine called "Fair Use" which is probably more complicated than you care to deal with here. There are a couple of options for you:
1) talk to the firm and request permission for you to use the works you created in your portfolio (both on-line and on-paper) and get that permission in writing;
2) find your work on-line and provide links to those sites;
3) consider your use a fair use and go ahead with it -- You should speak to an intellectual property lawyer about the specifics of your arrangement with the design firm and your uses of the works; and
4) damn the torpedoes, full speed ahead --this isn't a good idea at all but I would guess that 95% of those in your situation fit in here.
No matter which you choose, I would suggest crediting the design firm in the comments. For example, "Here is a brochure for HeatPumpCo. that I designed while working for TrendyGlassesDesign."
If you choose 2-4, there is a risk of receiving a cease and desist letter from the firm, the risk increases as you get closer to 4. If you get such a letter take everything offline immediately and find a lawyer quick.
This is a short summary of your options in a very fact specific realm of the law. None of this is legal advice and there is no attorney client relationship between us, blah, blah, blah (so don't sue me).
Clarification added July 31, 2008:
A couple of points:
1) Since you used the phrase "employed at a design firm" my answer assumes that the graphic designer was, in fact an employee. As an employee the designer is not the copyright holder. If the designer is a contractor then the issue of "work made for hire" is raised. Your situation is complicated enough without raising extraneous issues.
2) Your question "I was curious about what legal rights she had to the work she completed while under their employment" has a pretty simple answer, under US law she has no rights. She should call the attorney that contacted here and ask if there are conditions under which she can display the works, for example giving credit to the design firm that owns the copyright.
3) Your second questions "As a design firm, their portfolio does not give credit to the photographers and freelancers they work with, how is this different?" Is also fairly easily (and somewhat cynically answered) the copyright and credit issues are controlled by contract, the design firm has more power and is paying for the work so they get what they want. An especially powerful or famous photographer may be able to control the copyright and receive credit. Maybe Bruce Weber can get this but at a level lower than than the design firm will just move on the next photographer in their book.
In the U.S., there is no requirement that a copyrighted work include the name of the author or owner. As any works created within the scope of employment belong to the employer, however, the design firm is technically the author and owner of the work. As a result, the copying or display of the images without consent will be an infringement of the copyright owner's exclusive rights.
Nancy D
IP & Patent Attorney (& Public Speaker) (www.ipattorneyfirm.com)
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Mr. Barnes' answer is pretty good; however, he leaves out one important factor. The companies for which his wife works must all have "work made for hire" clauses in their contracts with his wife. In the USA, if that clause is missing from the contract, the work belongs to the artist. We believe that the artist himself is the original owner of the work and he assigns the work to his employer; thus, the employer, if it is to hold original copyright, must include the "work made for hire" language in the employment contract, or must have the employee sign a "work made for hire" contract for every work to which the employer claims copyright.
The link provided below is to the US Copyright Office's circular publication regarding works made for hire.
THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.
Links:
Madam Pater,
In India, the work would vbelong to the company as a Work for hire contract would be signed bewtween the employer an dthe employee. Furthermore the Copyright expreseely talks of the creation of a work by an employee.
I think Ms. Delain's answer misses a practical limitation on the "work for hire" clause... Most people do not have employment contracts that spell out the specific terms of their employment. For most of us, we are "at-will" employees (employees without contracts who can be hired or fired "at-will."
I represent a lot of architects and engineers, and generally the person who actually does the design work does not have a specific written contract. I imagine it's the same in the graphic design field (I know a few people in this area as well). For my clients, the design belongs to the company, not the individual archtitect or engineer, absent a special agreement to the contrary.
Ditto Mr. Barns' comment re this not being legal advice and no attorney-client relationship formed as a result of my comment.
The "work for hire" discussion perhaps needs one additional clarification. Ms. Delain is correct that if a person creates a work as an "independent contractor" (as that term is defined by agency law principles), then the work can only be a "work for hire" belonging to the employer if (1) it is one of nine specific types of work; and (2) there is a specific agreement in place.
However, if the person creates the work in the scope of their employment as an "employee" as that term is defined by agency principles, the work will generally belong to the employer, regardless of whether an agreement is in place.
Whether someone is an "employee" or "independent contractor" depends upon the very case-specific application of a number of factors that are probably too numerous to discuss in this forum. You should seek legal advice regarding this issue.
Your hypothetical graphic designer was described as an employee. Assuming this to be true, no agreement would be necessary to render the designers works as "works-for-hire," which in turn raises the issues addressed fairly exhausitively by Mr. Barns.
Clarification added July 21, 2008:
THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.
A good film example of this is "Life as a House". The main character is let go from his job after a very long employment building scale models of the architectural firm's designs. He put his heart into every one of them, but they finally allow him to take ONE with him - just not the one he wanted - since they all legally belonged to the company, not him.
It's sad that with graphic design it's the same way - a designer should be able to legally display the work they created in their portfolio. The copyright SHOULD be shared, but legally isn't.
Fortunately I know that as long as I don't share any information that a client of my former employer would normally pay for, I can use some of my designs in my portfolio.
Michele B
Ballagh & Edward LLP - Canada
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In Canada, its my understanding that the artist who creates a work in the course of employment is not the first owner of copyright in the work, but is entitled to keep a copy of their work as the author for their physical portfolio to show to potential future clients and employers, etc.. As long as they don't start making copies, there is no copyright infringement.
As for displaying the works on the internet in an on-line portfolio, I suspect that this would violate the rule against copying the work. If an on-line portfolio is important, I'd recommend negotiating a written agreement with the employer. A compromise might be that you will undertake to ensure that the images are "locked" so that they can't be (easily) copied by others from your web site. Of course, the employer may also want to be identified as the owner of copyright in the works - which is a reasonable request.
Another legal consideration is the clients for whom the work was originally created. The design firm may have actually assigned title to copyright in your work to the client as part of their agreement so you may have to seek permission from the client instead. You should also consider seeking permission from the clients anyway to ensure that the employer's relationship with the client is not disrupted, especially if the works involve use of their TM's. Such use may not constitute TM infringement in the legal sense, but it may attract complaints and unwanted attention from lawyers.
Good luck!
1) If the designs were created while you worked at another company, the designs and all materials used to create those designs, comps, proofs, etc are property of that company. You would have to ask both the company and the clients for permission to use those in an online portfolio.
2) In a personal, printed, portfolio however, you can present them in person as long as it is clear that you created those designs while employed at said company, you should also have any other persons name who worked with you on them as well.
In both cases you do not have the legal right do do so without permission from the company, but in the second case, Just to be truthful, we all do it anyway. It's impossible to build a portfolio without snagging some samples from work.
Susan O
Sr. Technical Writer at Carl Zeiss Meditec
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It is easier to ask for forgiveness than for permission. Go ahead and use the pieces. What is the worst that can happen? They can ask you to cease and desist. What company would do that? They are not going to bring a lawsuit, because they can only sue for damages. What are the damages? If anything, you are helping advertise their business.
Clarification added July 24, 2008:
Of course, this is my personal opinion. Don't sue me!
You might consider looking at any contracts that your wife signed with the design firm to see whether this issue is addressed in them, and also to see what is in there about assignment of copyright.
Dear Victoria,
In a "work" created under an employment, the copyright in the work belongs to the employer who becomes the owner of copyrights, the economic rights vest with the copyright owners (the moral rights always belong to the author).
all said the designer will have to take permission before displaying his own work. look at the case of a singer who sang for a label and assigned all rights to the label. The singer is not free to perform the song without permission from the label.
Javier P
Independent Law Practice Professional
Best Answers in: Intellectual Property (1), Blogging (1)
I'm not sure including a mention of the design on an online portfolio should be considered an exploitation of the work, in spite it is of course a reproduction, as long the purpose is just to show original authorship and could be covered by fair use.
Otherwise, maybe the copyright holder is now the client, so better to sign this agreement before the transfer of rights from the firm to him.
In countries recognising moral rights on intellectual property (to individuals), attribution is mandatory, so the firm or the client have to include your name by law. This wouldn't apply if the design is a collective work made for a teamgroup inside the firm, and also if we consider the protection of this designs also as trademarks.
Enrico S
Board of Governors at National Cherry Festival
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There is a good discussion which resulted from this thread on the Digital Millennium Copyright blog.
