A copyright confers on its owner a bundle of rights and interests.
But before that copyright interest or right can be validly transferred or assigned to another person or entity, the copyright owner must be sure that they presently own in part or in full the copyright interest that is to be transferred.
Determining copyright ownership means going back to the very origins of the creation or work and tracing all the facts concerning copyright ownership going forward to the present in a “chain of title” search that is similar a real estate title search used to validate land ownership.
If the copyright has never been assigned or licensed or if a previous licensing agreement has expired then the copyright owner is free to assign or license his rights in his work.
He routinely works with clients on an independent contractor basis.
Mark decided to work on a particular client’s project without a written agreement or contract stating the terms of the association.
The client later refused to pay Mark for his work.
The client then began to freely use Mark’s work claiming (1) there was no written or verbal contract for services and no “course of dealing understanding” between them and (2) and that based on the lack of any formal agreement Mark retained no copyright ownership interest or rights in the work he contributed to the project.
Mark feels the client not only ripped off his creative input and artwork but he seems to have been able to misappropriate the copyright interest in his work. Mark has proof his client is using his artwork.
Creative agencies are increasingly shrinking the number of in-house or staff creatives and opting to rely on freelancers to perform a multitude of tasks from pitching ideas to sustaining an advertising campaign.
The sluggish economy has stressed many agencies causing those employers to suffer difficulties in covering the cost of maintaining staff employees.
It costs a lot these days to maintain a regular employee on staff (payroll taxes, healthcare, insurance, etc.).
Outsourcing of Freelance Work on the Rise
Some employers hoping to pinch a few nickels have turned to hiring freelancers and specifically designating them workers under agreement or “independent contractors” to function as part-time, intermittent and offsite workers that in truth provide the majority of the agency’s day to day creative needs.
Unfortunately, these employers wrongly conclude that simply claiming an employee is an independent contractor even if he is supplying regular, ongoing and predictable company tasks will relieve an employer of his responsibilities to State and federal taxation authorities.
It will not, and worse, this action could be considered intentional tax fraud.
If they could only see and hear the state and federal agency tax-collecting accountants slowly pursing their lemon-sucking lips into a shape that only slightly resembles a smile. “Penny wise and pound foolish,” they’d sneer in response, “Do these people think we were born yesterday on what? Audit that company.”
Copyright Ownership & Transfer, Employees and Independent Contractors
The three most common Intellectual Property (IP) themed lawsuits are likely those that center on independent contractor/employee issues, copyright ownership issues and the hijacking of a unique and moneymaking idea.
The issues that create these types of lawsuits tend to crop up again and again for the simple reason that the law protecting the rights of the players is not always intuitive for most people with the result that costly and inadvertent mistakes can easily be made.
The first important legal mine field to know more about is the one that pits the rights of a creative or freelancer against those of an employer.
Part I. Independent Contractor IP Rights v. Employee
Just for a moment pretend that you created this really innovative business and you hired your neighbor’s kid do the programming work for your website.
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.
Part of being a professional creative is protecting your brand – for most of us, this means slapping a copyright notice on the bottom our manuscript pages or stamping a watermark over images we post online.
After all, copyright is implicit in your work from the moment you’ve put pen to paper or raised the viewfinder to your eye.
But putting a copyright symbol on your work doesn’t do a great deal in terms of providing actual protection for your work or your brand – it’s a bit like pushing the lock button on an older car without an alarm system, it’ll keep the honest thieves out but anyone who really wants to steal the car that day is going to pop the lock and drive away with it.
So what can you do about it?
Start by Marking Your Turf
Adding a copyright notice, embedding a watermark and including author information in a digital file are all adequate means of establishing the fact that YOU created something and YOU intend on keeping control over it.
None of these are going to stop a determined copyright violator, especially in a world where the internet encourages the sharing and free exchange of ideas.