[thelist] Re: Logo design (long)
Tara Cleveland
evolt at taracleveland.com
Sun Jan 30 16:16:48 CST 2005
On 30-Jan-05, at 3:41 AM, Burhan Khalid wrote:
> Please, please, post this URL when you get it live. I need to
> bookmark this to compare with local regulations, and thanks for your
> very informative post. If there was ever a "best post" award, you'd
> get my vote ... and thanks again.
I'm sorry, I just can't let this go any longer. Especially since people
seem to be taking it as fact.
Some of the things that Viveka wrote are just not true. And in some
cases she's got it dangerously wrong! Copyright laws are not simple.
They aren't impossible to understand, but they aren't simple either.
*********
Any graphic design that's published is automatically copyright. If you
did it for a client without a contract saying otherwise, then it's
"work for hire" and they own the rights.
***********
No, no and no. Actually it's the opposite. If you are an *employee*
then your work is owned by your employer. Otherwise, unless the
copyright is specifically sold in a contract, then you as the
contractor and author own the copyright to the work.
An employee is defined in the US as:
"*Control by the employer over the work (e.g., the employer may
determine how the work is done, has the work done at the employer’s
location, and provides equipment or other means to create work)
*Control by employer over the employee (e.g., the employer controls
the employee’s schedule in creating work, has the right to have the
employee perform other assignments, determines the method of payment,
and/or has the right to hire the employee’s assistants)
*Status and conduct of employer (e.g., the employer is in business to
produce such works, provides the employee with benefits, and/or
withholds tax from the employee’s payment)"
http://www.copyright.gov/circs/circ09.pdf
In Canada:
"Generally, if you are the creator of the work, you own the copyright.
However, if you create a work in the course of employment, the
copyright belongs to your employer unless there is an agreement to the
contrary."
http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_main-e.html
In the UK:
"In the case of a literary, dramatic, musical or artistic work, the
general rule is that the author, i.e. the person who created the work,
is the first owner of the economic rights under copyright. This rule
also applies to commissioned works. However, where such a work is made
in the course of employment, the employer is the first owner of these
rights, unless an agreement to the contrary has been made with the
author."
http://www.intellectual-property.gov.uk/std/faq/copyright/who_owns.htm
So it's actually the opposite. If you create a logo, web site design or
other artistic or literary work *you* are the copyright owner unless
you have created it as an employee - in which case your employer holds
the copyright.
***************
This is how almost all
graphic design work is done, across various fields. Photography is a
special case; Photographers often carry around a bevy of release forms
and contracts to ensure that they keep the rights, and only assign
specific usage to their clients. If you're a designer you could try to
do the same, but it would be very unusual and you would lose any
well-informed clients."
*************
This is misleading. Photography is *not* a special case in terms of
copyright (in general). Photographers carry around release forms as
model releases because people have a right to control their own image
and must release copyright to it. This does not mean photographers
inherently have special copyrights over their work where graphic
designers do not.
Photographers assign specific usage rights to their clients because
what they do is often reusable and so they want to assign limited
rights so they can re-sell the photograph to another company. A picture
of kids playing in a park could be used for an ad for Microsoft or for
Coca-Cola. This is rarely true with graphic design. An ad you design
for Acme Hydroponics is not likely to be reused by their competitors or
someone in another industry. That's why it would be considered strange
for a graphic designer to assign specific use in specific markets or
for specific time periods. However, it is fairly common to restrict the
use of a design to a specific medium.
*******
Depending on your jurisdiction you will retain "fair use" or "fair
dealing" rights to the work. In the US these are not clearly defined
in statute; however I've never heard of anyone being sued for
incorporating images of work in a portfolio. This is probably because:
**********
In fact, in most jurisdictions, if you do not hold copyright you
*cannot* use the work in this way. You must get specific permission to
do so. In some places you *might* be able to argue it's a moral right -
but I'm not sure. A good thing to have in your employment contract is
that you have the right to use works that you have created in
subsequent portfolios. Rights to pursue your profession are not written
into most copyright law - however they may be part of employment law or
case law. Rights to pursue your profession differ dramatically in
different jurisdictions. Look up your local law.
Fair dealing and fair use deals with the following types of situations
(in Canada - the US and other jurisdictions are similar):
Satire or parody, criticism and review, educational uses, private
research or study, libraries, archives and museum collections, to make
back-up copies of computer programs, to allow disabled persons to
access the material (ie to make audio copies of the work for blind
people is not infringement), and a whole bunch of other exceptions -
none of which is putting it in your portfolio.
In a very broad interpretation of fair use, and depending on your
jurisdiction, you *may* be able to use your work in your portfolio even
if you don't own copyright to it. But it's much safer to actually have
that use spelled out if you are selling copyright to your work or if
you are an employee.
US Fair Use info:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/
index.html
UK Fair Dealing info:
http://www.intellectual-property.gov.uk/std/faq/copyright/
ex_fair_dealing.htm
******
So how can they own the copyright to the rollover? Easy - copyright
can subsist in more than one person at once. They hold it (entirely)
and you do too. It's *not* property, it's a right, which can be held
by more than one person at once.
******
This is partially true, but not very clear. Two joint authors can hold
copyright to the same work. It's only in quite specific circumstances
that you would give your client joint authorship copyright instead of
usage rights. However it's more common to give all copyright (except
moral rights). If you've given all copyright over your work to your
client, you cannot then go and use that rollover code again. You must
retain copyright. You can give your client the right to USE that
rollover code, but that doesn't mean they own all copyright to it.
Just to make it more clear: you can have joint copyright, give full
copyright or give usage rights. Joint copyright given to a non-author
would have to be spelled out explicitly. Selling copyright means that
you no longer own the copyright. Giving usage rights (quite common
actually) means that you aren't selling all copyrights but only
specific rights.
If you don't spell out joint authorship or specific usage rights, but
sell or assign copyright that means that you *may not* use that
specific rollover code again.
********
In some jurisdictions there are now Moral Rights over creative works;
these allow creators to stop their clients from doing unspeakable
things to their creations. Work for hire, I'm afraid, doesn't count;
and wrecking your graphic design with bad code is perhaps unfortunate,
but reasonable for them to do. These laws are intended to stop people
buying paintings and setting fire to them, not preventing bad
typesetting.
*********
Whether you retain moral rights on Work for Hire depends on your
jurisdiction. The US and UK definitely exclude it. Other jurisdictions
are different. Canadian law says it resides in the author. YMMV.
Moral rights also covers attribution - which means that someone can't
buy your web site design and claim they created it unless you
specifically waive moral rights. You can also stop someone from
publicly claiming that you created it if you don't want the work to be
attributed to you (very useful with some clients that have you create
hideous work that you'd rather not have attributed to you).
Moral rights don't cover all things that can be copyrighted in all
jurisdictions. In the US (AFAIK) moral rights cover visual art only. Go
check out your local laws for more info.
Okay, so that's it from me. I haven't looked into patent or trademark
law so I won't comment on those two issues.
The usual disclaimers apply, I am not a lawyer, go and get advice, have
a lawyer look over and/or write you contracts etc. etc.
Regards,
Tara
--
Tara Cleveland
Web Design
http://www.taracleveland.com
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