[thelist] Re: Logo design (long)

Tara Cleveland evolt at taracleveland.com
Sun Jan 30 23:52:06 CST 2005

On 30-Jan-05, at 11:24 PM, Mattias Thorslund wrote:
> But, but, but.... This is even more confusing..  Sorry for the 
> hair-splitting but I have some questions on some of this....

Sorry that it's confusing, but like I said... it's not as simple as it 
appears to be.

> You mean to say that "work for hire" would not apply if a client hires 
> a professional for a particular project (such as a company hiring a 
> designer - or a design firm - for a logo)?

No that is *not* work for hire. Work for hire is essentially an 
employee-employer relationship. You go to an office from 9-5 every day 
and you do pretty much what your boss tells you. That's work for hire.

> It seems you mean that unless someone works under an "employment" 
> contract, the transfer of rights to the employer wouldn't happen.

Or someone is hired as an employee (not all employees have contracts). 
And yes that is what I mean. Work for hire, employer-employee 
relationships are the only occasion when an automatic transfer of 
copyright happens from a living author to someone else. Otherwise you 
have to spell it out in a contract. You must specifically sell or 
assign copyright in a contract.

> Question 1: When you do contract work for someone, isn't it a form of 
> employment?

No. The same way that if you hire a lawyer, a dentist, a landscaper, a 
plumber, or a teacher they are not your employee. That's the nature of 
contractors. It's a business not an employment.

> Question 2: If I hired someone to do a design for me, how is it a 
> legitimate transaction if I get no rights to the resulting work?

Because your contract should state that the client gets usage rights. 
This is *why* contracts are so important. This is *why* people tell you 
to get a lawyer to look over your contracts. In some jurisdictions 
there are usage rights assigned in contract law. But they usually state 
something like that the client can use the product for whatever it was 
intended for. Which really is a bit vague - especially when it comes to 
web stuff. It doesn't matter if you are the client or the contractor. 
Get a good contract. Make sure your understanding of what rights are 
and are not assigned is clear.

> The specifics of who gets the copyright and who gets what usage rights 
> could of course be spelled out in the contract. Given the amount of 
> confusion here, that seems to be the safest thing to do.

Yes. Exactly.

> I don't see that Viveka makes any claim that photography is any 
> special case when it comes to copyright.  She talks about the common 
> business practice in that particular industry, not copyright.  I don't 
> think that's unclear or misleading.

Oh well maybe I misread her. I thought when she said "Photography is a 
special case" she was referring to copyrights and how they relate to 
business practices.

> This is entirely new to me... I've heard it's the photographer's 
> copyright by default, or at least if you are in a public place and not 
> in private.  Anyway, that's a bit off-topic perhaps.

I think it depends on jurisdiction and situation. But essentially my 
point was that when it comes to copyright photographers have no special 
rights more than graphic designers do (with the usual caveat: in most 
cases and depending on your jurisdiction).

>> 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.
> I can imagine that, but provided that it was written specifically for 
> that project. If it was already written and put in the developer's 
> "toolbox", I wouldn't think it would apply. If it's written by someone 
> else and shared, either under a specific license that allows re-use by 
> others (e.g. an open source license), or put in the "public domain" 
> (a.k.a. freeware), nothing would prevent anyone from using that 
> rollover code.

That was my whole point. If you sell them *all* copyrights it doesn't 
matter if you've used it as part of your "toolkit" before or if someone 
else uses it. You have now sold them the copyright to it. It's gone. 
You sold it. You can not use it again in exactly the same way. You'd 
have to redo it entirely so that it is not a derivative work.

That's why you need to spell it out in your contracts. I usually keep 
copyrights and sell usage licenses to my designs and my code. I 
specifically state that I am *not* transferring rights to code 
previously developed by me or by others. I also specifically state that 
I will alert them when 3rd party work is being used and that open 
source software may contain license provisions that require them to 
release modifications to that code that they may make in the future. 
All of this should be spelled out in your contracts.

If you use code that is freeware, open source or that you don't own the 
copyright to and your contract says that you are selling copyright to 
the code you provide to your client, then you are ripping off your 
clients because the copyright to the third party code is not yours to 

> For clarity, it would be nice to express in the contract that certain 
> "libraries" of generic code are to be shared between client and 
> developer of course.

This is all about usage rights. Just because you own copyright doesn't 
mean that you can't assign them the rights to use, modify and update 
that code. You can also sell them your services for implementing and 
modifying third party code, but you need to make sure that they 
understand that they are not buying copyright to that portion of the 
code - especially when you are selling copyright to all the rest of the 
code that you are providing them.

I hope that clarifies stuff a bit more. All the usual caveats apply... 
I am not a lawyer, etc, etc,.


Tara Cleveland
Web Design

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