LAWS of Authorship

by Susan Kirkland

Susan Kirkland Susan Kirkland writes about Copyright LawProtecting Your Work One almost famous photographer I know put out a remarkable self-promotion piece. It was a calendar so simple and stunning, everyone wanted one. It was a series of posters with spot varnishes printed in full color on 100 pound coated cover. Being a professional (before he sucked everything up as nose candy), he stamped a copyright mark on each and every image used to produce those promotional pieces. About 6 months later, he received a phone call from a printer two thousand miles away. “Say, I've got these stripped up negatives here and I don't see a copyright release. I'll need that before I can proceed with the job.” It seems the guy who printed the job for the photographer liked the posters so much, he decided to reprint them quietly for his own promotion, without the knowledge or permission of the photographer. “Hell, no, I'm not giving you my permission.” Oh, to be a fly on the wall when those two guys came together.

Having a clear understanding of the differences between copyright, trademark and patent is important—not only to protect ourselves, but our clients, too. From time to time, forum participants have declared that they have lease agreements with their clients for logos they designed (say what?), that Nike leases its logo from the designer (aw, go on), that on-line logo services are restricting some usage rights (the special Frank Zappa “no foolin'?”). They want to know how much to increase their design fees if a print run is over or under a certain quantity. They ask what wording is used to transfer certain usage rights when they design a website. None of these questions would be asked if everyone selling design services had a clear understanding of the nature of copyright and fair use.

Susan Kirkland understanding copyright Confusion sets in when one applies the rules of photography or illustration to design. They are very different by definition and one of the steps of registering a creative work is definition. Trust me; if you have trouble defining the parameters of your work as far as ownership, you'll have just as much trouble defining it on all the forms you'll need to file a copyright, trademark or patent.

When you create a work of art, you are automatically protected by the laws of authorship. Whether a painting, an illustration, a play or a clay pot, no one can own it but you. Now, if someone buys that item from you, then they own the rights to live with it and display it—but they don't own IT and may not alter or destroy it. In fact, if they endanger it in any way, the law says it must be restored and returned to the original artist. This applies whether you file any paperwork or not. It's automatic; the only thing you have to do is identify yourself as the artist and that's probably why it's a good idea to sign your work if you are a fine artist.

The difference between fine and commercial art is that very signature: fine artists put their name on the work, commercial artists get their name on the check. Commercial art involves an assignment from the client which constitutes an understanding that you are designing something specific to that client; custom fees for custom design. Designers who work on the cheap need cheezy schemes to bring in the cash; it's like a Pay-Me-Less tennis shoe store selling shoes for $5 with a per game usage fee extended for the life of the shoe.

When a photographer shoots a picture, unless he is working under a "work for hire" contract that defines his work product as property of his employer, he owns what he shoots. He may transfer some usage rights or he may sell the thing outright; the difference is the price will rise as the rights increase. When an illustrator receives an assignment from a client, the fee will rise if the illustrator transfers all usage rights to the client, or if he wants to retain some rights so he can sell the illustration again as stock art or if he wants to retain the original. Few clients I know will go to the trouble of hiring an illustrator to do a custom job if they aren't going to be the exclusive owner of the usage rights. That's why illustration is expensive.

work for hire When you buy a stock photograph, the agency will ask you how many impressions you will make. If you only need 100 brochures, the stock photo will cost less because you are getting less usage. If your run is over 5M, you will pay more because more people are seeing the image on behalf of your cause. The risk, which is inherent in figuring the value of a stock photo versus paying for a custom photo shoot, is that you might see the same photo on a competitor's sales piece. Why isn't it the same when you design a brochure? Because you cannot own the elements and their arrangement, and that's all a layout is. After a finite number of people copyrighted their designs, there would be no more design. Who owns text set nine over ten, flush left, rag right, and positioned in the lower left corner of a page? Can't be done. Copyrighting graphic design would mean someone owned an idea or way of doing things. The trouble, as well as the basis for understanding, comes in the definition of parameters.

Logos are expensive endeavors. Custom anything is more expensive, but when you sit down with a designer and discuss your mission statement, your customer base, your product line and your target market; all of that time figures into the cost of identity development. It would be unethical of a designer to take the product of all that input and resell it later -- and that's part of the intrinsic value of a custom logo and why you cannot retain any of the rights.

No one is going to hire you to design something that time intensive if they don't end up owning it. Think about it. After the identity is complete and the bill has been paid, the client can register his new logo with the Trademark office; but you can not copyright it because it was commissioned with the intent of identifying someone else's business.

Susan Kirkland  
      Susan Kirkland,



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