For most graphics designers, it’s hard enough juggling the rigors of running a business or staying on top of a hectic freelance schedule.
Add to that the mountain of confusing information surrounding intellectual property (IP) rights, and a vast sea of frustration, and even borderline apathy, might quickly ensue.
However, graphic designers have good reason to get to know the specifics about their IP rights.
Once work is created and made available to the public, the chances of someone claiming the work as their own or reproducing it without giving proper credit can skyrocket in today’s technologically advanced, share-friendly culture. Nothing is more infuriating than discovering that your creative ability is being exploited by someone who has neither the permission nor the right to do so.
Quality Work Needs Quality Protection
Getting the facts about intellectual property laws and how they affect your design work is something that simply cannot be put off.
That’s because just about all the work that designers produce falls under the category of intellectual property, and the wisest thing to do with intellectual property is to protect it.
Remember, just because there is no tangible product involved in your creative process does not mean your work deserves any less protection, or compensation, than other valuable business assets.
Graphics designers also must be prepared to go beyond simply protecting their own work. They also need to make sure they don’t end up infringing someone else’s work as well.
In the design field, as in any other, it’s considered extremely disrespectful and ethically inconsiderate to use someone else design without permission.
It’s imperative that designers stay abreast of what is and is not allowed when it comes to using the images, photos and design elements of other artists and creators.
Fact 1. The Difference Between a Copyright and a Trademark is Use
Several types of intellectual property rule the graphics design world.
There are differences here that are essential to know for interactions with clients as well as for protecting your ideas and creative work.
The two most important IP rights for graphics designers are copyrights and trademarks.
Copyright. A copyright protects any completed graphic element whether registered or not. Even though you have the option to register, it’s always a good idea to, at least, keep detailed records of the work you’ve created.
This way there is evidence that you are the original author and that can form a solid legal defense should you need it.
Copyright gives the original creator certain very valuable exclusive rights such as the right to reproduce the work, publish the work, make adaptations and communicate the work to the public.
Legal protection of a copyrighted works lasts for the life of the creator, plus 70 years.
Trademarks. Trademarks cover a broad range of design elements, including logos and product shape and design, and even sounds.
These are brand marks that give a particular product or service a distinct identity or help consumers distinguish between various products or services.
Where copyright ownership arises from authorship or original creation, trademark ownership arises from use in the marketplace. With trademarks, it’s not the so much originality that’s protected, it’s the distinct identity of the brand.
As with copyrights, it’s not required to register a trademark, but registration does grant the best and most complete protection.
Registration, however does require a trademarks clearance search to ensure that you are not attempting to register a mark that is already in use or that would likely confuse consumers due to it’s similarity to another company’s mark.
Again, the protection here stems from how the mark operates as an identifier of goods or services, so the likelihood of consumer confusion, or lack thereof, is extremely important.
To provide notice about the legal standing of a mark, registered marks use the circle R symbol, ®, and unregistered marks use the ™ symbol.
Fact 2. IP Law Extends to Cover Special Situations and Gray Areas
Works for Hire. In the course or work or employment, it’s the employer – not the employee – that holds the copyright for creative work done by the employee.
This is one of the few situations where the original creator is not the actual owner of a created work. It means that once you are hired by a company, any work you create during while doing your job belongs to the company.
More Than One Creator. Joint ownership is possible if more than one person creates an original work. Anyone wishing to reproduce or copy the work would need permission from all creators, in this instance.
If each designer contributes a distinct part of a larger work, then only that part is protected by copyright, with each designer owning only his own contribution.
In this instance, each participant would need to release rights or grant permission for another’s use.
Abandoned Ideas. Keep in mind that, even with discarded ideas and designs that don’t make the final cut for publication, the ownership still lies with the original author for copyright. It’s best to keep track of all your work, including sketches and notes, as even what is not used right way may still have commercial value later.
Fact 3. Registration is not Required to Enforce Your Rights
Designers know best the amount of time, energy and real capital that goes into creating original design elements. When the work is discovered in someone else’s hands without permission, it can be a significant blow.
Luckily, there are ways to enforce your IP rights, with or without registration, and send a firm message to possible violators.
For published, copyrighted works, it’s important to give notice that the work is copyrighted and provide the date the copyright began.
If publishing your work involves a transfer of rights, be sure to read in advance any written notices about how publication will affect any rights you may retain going forward.
Policing the web for possible copyright and trademark violations may seem like a daunting task, and the results may be quite shocking, but considering the amount of time and effort put into creating work, it’s often well worth it.
Reverse images searches through Google and other dedicated sites can often track down trademark violations, and the periodic use of professional search companies can add rigor to your investigations.
Fact 4. Graphics Designers Can and Should Avoid Infringing IP Rights
In the Internet Age, information and images are ubiquitous.
This means it’s crucial, with so much at your fingertips, to ensure that you have the right to use anything you select from the Internet for designs.
This is so that the original creator of the work, a photograph or font for instance, gets proper credit first. Otherwise, you run the risk of infringing the rights of someone else and facing unnecessary legal trouble.
Keep in mind, it’s possible to infringe a trademark even if you have not copied the mark. Again, the standard is likelihood of confusion from the perspective of a consumer. This means the best way to avoid trademark infringement is:
1) First, to create and use a thoroughly distinct and original mark, and
2) Conduct a thorough trademark clearance search to make sure the mark you’ve created isn’t already in use.
If you’re expecting the client to clear the mark, make sure you spell this out in writing first and make it an explicit part of your design contract.
Fact 5. Real Value Arises in the Transfer of IP Rights
IP issues are often the single most important in dealing with clients.
Most clients will want all IP rights transferred to them via a well-worded design contract.
This makes it easier for the client to use the designs for their own purposes. Since work designed for someone else’s use has very little initial value to the designer, real value arises in the process of transferring and assigning the IP rights.
Knowing how to properly transfer your IP rights to a client or to another individual is an essential skill for a successful graphics design career – especially since the opportunity to make most of your income lies in properly negotiated transfer fees.
Managing large numbers of copyright transfers can be difficult but can be made easy by using an online service like Kunvay that’s free for freelancers and creatives to use to transfer copyright and IP ownership to clients.
This also means your contract negotiating skills must be on point to ensure that compensation for design work is adequate. T
alk with your client about transferring rights to your work and be sure that payment terms are clear. A client is often willing to pay you more for your work when you offer them the option to receive full copyright and IP ownership so they own their work and own their future.
Step Forward in the Right Direction
Second to none is the feeling of creating something new and unique, an authentic product of the mind.
The understanding that these authenticities can and should be protected is essential for anyone who creates intellectual property professionally.
Just like any other business asset, intellectual property has enormous value which is protected by law.
Knowledge of this law can secure your work and protect the investment of time, energy, experience and resources that goes into your work as well as ensure that compensation and credit for the work is fair and adequate.
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About the Author: Veena is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD in law from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas.