[thelist] Re: Logo design (long)

[Tara Cleveland]

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