Before computers became the main instrument of design, graphic design was a labor-intensive process involving scalpel blades, spray mount, toxic chemicals and hours spent in dark rooms.
Post-digital, a few keyboard strokes enables the process of design to print and be completed in a matter of minutes.
For both designers and freelancers, the creative process has moved on and graphic design is now a broad term covering all ends of the creative spectrum from package design to multimedia development.
Unfortunately, copyright law has struggled to keep up with the new technologies and things do not always appear to be black and white. Here are some pointers:
What is Copyright?
Copyright gives the owner of original, creative works the exclusive right to copy, publish, distribute and adapt their works.
Essentially, this gives the owner the right to stop others copying, adapting, publishing and distributing their work without permission.
When does Copyright begin?
Copyright begins as soon as an idea is expressed in a tangible form, i.e. that it has been written down, drawn etc. You cannot claim copyright for an idea unless it is in a material form.
How long does Copyright last?
There is no easy answer to this question.
Terms of copyright differ from country to country, and are also dependent upon the type of copyrightable material.
As a general rule, literary and artistic works are covered for 70 years after the death of the author, but some copyrights, such as broadcast rights are only for 50 years.
What is Copyrightable?
From a creative perspective it is pretty much every original idea where a certain amount of skill and knowledge has gone into the creation of the work.
Broadly, creative works that are copyrightable fall under the following categories:
- Literary works
- Musical works, including lyrics
- Dramatic works, including accompanying music
- Choreographic works
- Artistic works, including graphic, pictorial and sculptural works
- Motion picture and other audio-visual works
- Sound recordings
These categories should be looked at generally as some works may fall into more than one category, for example a book (literary work) that has been made into a film (motion picture).
What is not Copyrightable?
From a freelance and graphic design point-of-view there are certain things that cannot be copyrighted. This list includes, but is not exhaustive:-
- variations on typography, coloring or lettering
- lists of ingredients or contents
- common information, such as telephone directories, calendars or TV guides
- government documents
Other things which are commonly thought to be copyrightable, but which are not, include:-
- names, titles, slogans or phrases
- symbols (eg. The Nike Swoosh)
- non-functional aspect of a product (e.g., The distinctive curved Coca-Cola bottle)
However, these are protected under law as Trademarks.
What about Digital or Electronic Rights?
As copyright law existed before digital media, there is no specific provision in copyright law for digital, electronic or multimedia rights.
This does not mean that those rights are not protected; it just means that it is not straightforward as these rights have to be fitted into the existing categories.
For example, a website may contain a range of copyrightable material, including literary, musical, and artistic works as well as sound-recordings and broadcast rights.
Does the © symbol need to be on the work?
There is no legal requirement to include the © symbol on your work. However, it does serve as a reminder to any would-be infringers that the work is copyrighted.
Do I need to register my Copyright?
In most countries copyright protection is automatically attached to original work as soon as it is created, and there is no need to register it.
However, as copyright infringement and theft is a major issue, more and more copyright owners are taking steps to register their works with copyright registration facilities.
In the United States, although copyright is automatically granted as soon as the work is created, if you need to file an infringement suit you will have to register the work with the Register of Copyrights.
What if I use someone else’s work to create a new one?
A new work created from an existing copyrighted work is called a derivative work.
Examples of a derivative works may include translations of novels into a different language, a remix of existing music or a collage created from existing photographs or artwork.
Usually, you will need to get permission from the copyright owner of the original work or your new work will be a copyright infringement. A derivative work may still be copyrightable, even if it infringes an existing (underlying) copyright.
Are there any circumstances when I can use pre-existing works without permission?
In some limited circumstances, yes:
Most countries have a fair use or fair dealing provision in their copyright laws which allow for limited use of copyrighted works for research, criticism, news reporting and private study, without permission.
When the term of copyright expires these works then become public domain.
The works are then free to use, without permission, as long as the proper attribution to the originator of the work is acknowledged.
Is there a difference between Copyright Infringement, Plagiarism and Piracy?
Plagiarism and piracy are both copyright infringements.
Plagiarism can be as simple as omitting sources and not giving the owner the proper attribution. However, it could also be deemed as ‘passing off’ another’s work as your own.
Piracy usually refers to copyright infringements on a large commercial scale and is considered to be a criminal offense, resulting in a possible jail sentence.
Copyright infringement is generally a common law offense, and legal redress usually involves damages and delivering up of the infringing materials.
If I create an original work do I own the Copyright?
Generally, yes – but there are exceptions.
If you are employed, it will usually be your employer who owns the copyright. If you are a freelancer, your client will probably expect the copyright to be transferred to them upon completion.
How do I transfer my Copyright?
To transfer or assign a copyright involves the creation of a formal legal document, which can be complex, costly and time-consuming to arrange as particularly if you employ the services of a lawyer specialized in copyright law.
Kunvay streamlines this process, providing easy, transfer documentation between graphic designers and their clients.
Kunvay eliminates risk and provides peace of mind to both parties, ensuring an easy transfer of your creative work in a process as straightforward as a click, at no cost to you.
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About the Author: Amanda Duffy has a degree in law from the University of Westminster, London. She has had a successful career in music copyright and publishing at the Mechanical Copyright Protection Society, the BBC and FremantleMedia. She is now a freelance writer.