Very often, the last thing that creative people want to concern themselves with is the nuances of copyright law. Determining whether or not you have permission to use a certain image or the correct licensing for a particular typeface is a surefire way to take the wind out of your creative sails as you find yourself combing through the small print. Then there’s also the tricky question of what to do if you’ve been ripped off. In a time when open-source libraries and Creative Commons images abound, and when many of us have grown up as part of a generation that’s used to watching and listening to things for free, the ins-and-outs of payment and permission can be hazy. Thankfully, the artist-designer Eric Schrijver has written a practical guide for graphic designers, type designers, artist and more about all things copyright related.
The book’s design itself is a lesson in and exploration of copyright law: it investigates strategies for designers to re-use without having to ask for permission. “Not because I’m against licensing per se,” says Schrijver, “but because I wanted to show many of the alternative strategies designers can use.” The book’s designer Loraine Furter drew extensively from the public domain and from collections with open licenses for visual material. “It means that there are less legal restrictions for future editions and adaptations of the book,” says Schrijver, “Loraine also designed it so that the spreads fit easily on a copy machine, and its color palette survives black and white copy.” The title is licensed under Creative Commons Attribution Non-Commercial, which allows readers to copy and distribute it (just not sell it themselves). So in the spirit of copying and distributing, Schrijver sent us an excerpt from his chapter on copyright law 101 for graphic designers. Share and distribute it as you like…
Mixed Authorship is the Norm: Copyright for Graphic Designers
Some artists have it easy when it comes to copyright. Writers, for example, can write an entire novel without once having to think about legal minutiae. If you’re a graphic designer, your relation to copyright can get a bit complicated though. Sure, what you make is the outcome of creative decisions. You will get copyright. But yours is not the only copyright you need to account for. From a legal standpoint, graphic design is interesting exactly because authorship is always mixed.
Working with clients
Graphic designers today have hybrid practices. You may teach, write, or initiate projects and exhibitions around themes that concern you. Still, for most designers, working with clients is a very significant part of the job. This makes the situation different to those artists who first make something and then have to sell it: you are, at least in part, a service provider.
When someone pays you to make a design, that’s what they’re paying for, the service of making the design. Paying for your services does not automatically grant your clients copyright. The copyright remains yours. This might seem counterintuitive but, theoretically, the client will have to ask your permission to reproduce the design!
Basically, when commissioned, you are considered to permit at least the reproductions that are the logical consequence of this commission. For example, if you’re asked to design a poster announcing a theater show, you accept the poster is going to be printed and distributed around the city in the weeks before the show. However, if the theater then wants to reuse the poster on the cover of next year’s program, they theoretically need your permission. If the theater asks their in-house designer to create a new poster for another piece, based on yours, they also need to ask permission.
This is, of course, a hassle for clients. Legally-savvy ones will want to negotiate that copyright of the work is assigned to them in the contract. Depending on how strong your negotiating position is, you’ll be able to bill them extra for this. In Belgium, graphic designers often bill the design labor separately from the copyright assignment, because copyright royalties are taxed more favourably than other income. You can either sign the copyright over in full or you can write out a non-exclusive license, allowing you to continue to use the work yourself.
With smaller clients who have smaller budgets, you can opt to keep your copyright, explaining to them that you would prefer to be involved as a designer on subsequent iterations. There is also a small but growing group of designers who publish their client work under open licenses, allowing not just themselves and their client, but also other designers to reuse their work. Whatever you do, discuss the arrangement with the client at the start of your relationship. You won’t make any friends if you barge in with legal threats years later!
Clearing the rights
As a graphic designer, you need to understand not only how you license your work, but also how to license the work of others. That’s because in every design there are elements that you did not make yourself and whose copyright does not belong to you. There can be texts you did not write, photographs you did not take, typefaces you did not design. You need to make sure all the rights are secured before your design goes online or rolls off the press.
Legally, since it’s usually your client who is going to make your design public, it’s they who might find themselves responsible for any copyright infringement. In which case, they could sue you for negligence afterwards. It’s best to work together with your client and educate them to make sure you both cover your bases. That might mean explaining to them that they can’t just use any image they find online or that the typeface for which they have a desktop license might need another license for use on their website. For the copyrighted elements you bring into the design, figure out what’s easiest between letting your client obtain the license and obtaining the license yourself. The latter makes more sense when it’s you, the designer, subcontracting an illustrator or photographer.
Finally, be careful with pre-existing visual elements that you bring into your design. Just like for visual artists, it has become extremely common for graphic designers to tap into the wealth of visual material surrounding us, whether by sourcing images from old books and magazines or online image searches. Many of the same pitfalls apply as in visual art. It really doesn’t matter how much you dither, trace, distort or if the image is only a small part of the final design. Incorporating an existing image without asking permission or obtaining a license is copyright infringement. However, a wealth of material is available that is in the public domain or licensed under Creative Commons.
I got ripped off!
It makes little sense for other graphic designers to copy your work directly. After all, most pieces of design are created for a specific purpose. But many elements of your design can be copied, from the way you treat images to the kind of typefaces and colours you use through to the way you position different elements on a page. These aspects are not copyrightable in themselves, however. What you’ll have to prove is not only that the other designer copied your design specifically, but also that they copied the part of your design that is original. And since graphic design is highly sensitive to fashion and trends and, at any given moment, fashionable designs will resemble each other, you might have quite a hard time doing so. If you feel like other designers are imitating your style, the most rational approach is to take it as a compliment and to work hard to make sure your work is out there and visible so you can get the credit for being ahead of the curve.
For visibility, many designers rely on design blogs and related social media featuring their work. These blogs sometimes operate in complete disregard of copyright. Usually, designers first put their portfolio online and blogs pick up on the work, write a short review and post the images. Other blogs then copy the images for their own write-ups. Theoretically, this is not how copyright works. These blogs are supposed to ask your permission first. If you want, you can start sending cease and desist letters around the internet. But it’s of course in your interest that your work gets around. What you can do is verify that the images are properly attributed and link back to your website. If that’s not the case, you can use copyright’s leverage and reach out to the publication and tell them you don’t mind them displaying the image as long as the attribution is in place.
One possible scenario when copyright does come into play is in the case of clear-cut plagiarism. That is, when a designer incorporates your work into their portfolio as their own. In this case, copyright infringement should be much easier to prove. Illustrations are also easier to copy and today they can end up on t-shirts, posters and other products—in this case you can take action if you so wish!
Reproducing graphic design in print and exhibitions
When it comes to reproducing design in books, or making an exhibition of designs, the story gets more complicated. A publisher will want to make sure to obtain permission from the rights-holder when using an image. The financial stakes are higher: a blog can remove posts but a publisher can potentially be forced to destroy the entire print-run of a book. Securing the reproduction rights of a graphic design is more difficult than with other images as the copyright is potentially split between various parties. You have a copyright on the design and if you’ve worked with photographers or illustrators they will have copyright as well. The client will provide texts and photographs and these will be copyrighted to the either the client or their subcontractors. The subcontractors can assign their copyright to client, as you can. But instead of assigning copyright it can also be that all parties have created licensing agreements between each other. The reproduction of the final work has to, theoretically, abide to the terms of all these licensing agreements. That’s why, for example, the French National Centre for Graphic Design in Chaumont has a legal department that spends a large amount of time figuring out such legal spider webs for the works they acquire.
In some jurisdictions, using images of works will be possible without prior permission in the context of design criticism. In the U.S. this falls under fair use and the College Art Association released a guide on this topic.
Who gets the copyright, me or my boss?
Graphic designers rarely work totally alone. The way your studio is structured impacts your copyright. If your studio doesn’t exist as a legal body, then it’s just like artists working together: copyright is shared between the designers working on the project. If the studio gets incorporated as a company, in most jurisdictions, the work of its employees will automatically be assigned to the company. The work of freelancers, however, belongs to them. In France, even employees get to keep their copyright. If you’re running a studio, it’s in your interest that the studio has copyright over all its productions, otherwise you’ll be in a difficult position when negotiating copyright assignment with your clients. You’ll want all your contractors (and in France, employees) to sign contracts that they assign copyright to you. If you work as a freelancer for a studio, don’t be surprised if you’re asked to sign such as a contract. However, whether as a freelancer or an employee, copyright assignment only pertains to the projects you do for the studio. Any projects you do in your own time are still wholly yours. And while you can assign copyright, you cannot sign away your moral rights. This means you can always ask to be properly credited. Your contract can, however, contain a clause in which you promise not to exercise your moral rights.