Whose Digital Files Are These, Anyway?
By Jacqui MacKenzie on March 17, 2012
Featured Member Post
When I’m not writing blog posts for Chicago Web designers, you can often find me behind a camera. I’m not a professional photographer by any means – just a girl with an expensive hobby. But when I noticed that a number of photos a friend and I had taken at a local restaurant had somehow made their way to the restaurant’s business website, I knew something was wrong. Our names were credited at the bottom of each Web page, but the fact remained that no one had asked permission to use our photos on the site.
At the time, I was still fuzzy on ownership and copyrights and what was considered stealing intellectual property. Was a simple credit enough? Should I just be flattered that they used my photos in the first place? Did I have the right to demand they take them down, or to get paid for the photos they posted?
For professionals who make a living off of their photographs, designs and other creative digital works, being fuzzy on copyrights can be dangerous. The growth of these artists’ reputations and careers depends heavily on the ability to claim authorship of their work, and to show clients their talent, experience and capabilities. The work they produce holds value based on the time, resources, skills, education and equipment required for production. If someone else uses it without proper copyrights, he is essentially stripping the work and the author of that value and reaping the benefits himself.
Digital Art by FrankBonilla.tv via Flickr
Outright copyright infringement is easy enough to spot – those photos I mentioned above were obviously used without permission, so when I told the restaurant owner I required compensation for use or they had to be taken down, she didn’t argue.
But the intricacies of copyright and who owns what can get messy when you’re working with clients.
Let’s say you are a graphic artist, and you are contracted by a client to produce an e-newsletter. You provided all the designs, images and logos for the newsletter, and they paid you well for your work. A few months down the road, and you notice the logo you created for the newsletter is now plastered all over that client’s website. Are the digital files you provided during the last project theirs to use for whatever they want, or do the digital files still belong to you?
Here, I’ll provide a basic overview of copyright. I’ll also touch on licensing and work-for-hire. Please keep in mind that I am not an expert on copyright law – I just want to provide a few guidelines that will hopefully help graphic artists and designers better understand the true ownership of their work.
Copyright laws vary by state and country, so always consult an attorney for accurate advice in any given client situation.
© Login - Fotolia.com
What is copyright?
According to the Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, 13th Edition, “Artists’ rights to control the use of their original creative art are defined primarily by copyright law.”
Copyright includes a bundle of individual rights, which allow the author to reproduce, display and distribute their work, or intellectual property. In the past, intellectual property required copyright registration in order to be protected. Current law says that from the moment a piece of intellectual property has been created, whether it’s a photograph, logo, song, article or drawing, it is protected by copyright – with no need for registration. That means that as long as you created the work, the copyright belongs to you.
So what does that mean for your client? It all depends on your contract.
Once you produced the work, all of the rights are inherently yours. However, you can transfer your rights outright (or license each separately for a given period of time) with fees based on the value agreed upon for the work.
Granting exclusive unlimited rights to your client means that he owns the copyrights to reuse as he pleases, and you cannot sell usage or rights to anyone else. You have the right to display the work and use it for promotional purposes, and you retain and can reclaim your authorship rights after 35 years.
The transfer of exclusive rights requires a written agreement signed by you and your client. You retain any rights not specified in writing.
Get everything in writing. Anything not in writing is still yours by copyright law. So if you sold the rights to all the digital files included in the e-newsletter project to your client, and specified all of these files in writing, then your client has the right to use them on his website. But if your contract states that you retain all of the rights after the project is complete, or if you specify the usage of the files for purposes of the e-newsletter only, the client cannot use the files for his website. And if you didn’t have a contract (shame on you!), then the work still belongs to you.
© Mariusz Prusaczyk - Fotolia.com
What about licensing? Or work-for-hire?
The Graphic Artists Guild Handbook provides the following definitions for licensing and work-for-hire:
- License: Right to sell or rent artwork or design for a specific use and period of time.
- Work-for-hire: The commissioning party owns the copyright of the artwork as if the commissioning party had, in fact, been the artist.
If you had licensed the digital files to the client for the e-newsletter only, the client would have to purchase an additional license for rights to use the files for his website. By licensing individual rights, you still retain the rights for any uses not licensed, and you can still take advantage of any value that your work might attain in the future.
Work-for-hire, on the other hand, is an exception to the rule that you are the owner of your work from the moment you created it. If you are an employee at a design agency, for example, your work belongs to your employer. If you are a freelance artist who has signed a work-for-hire agreement, you agree to hand over all rights to your work as if you were an employee, but without the employee benefits (salary, health insurance, sick days, vacation, etc.) that can compensate for the loss of copyright. Instead, you become an employee simply for the purpose of copyright.
What should you do?
How do you know which types of rights you should transfer to your client? For the most part, everything should be considered on a case-by-case basis.
Many artists transfer exclusive rights to the client upon completion and full payment, retaining some rights for promotional purposes, with the idea that the design is unique to the client and will never be reused for another client. This is often a smart move if you’d like to maintain a strong relationship with your client, with opportunities for future work. By refusing ownership from the very beginning, you might just end up burning bridges.
Again, take it on a client-by-client basis. How much do you trust your client? Do you want to work with him again? Has he ever been late on payments or is he difficult to work with? Keep in mind that if you’re transferring complete rights, you should be paid substantially.
© kentoh - Fotolia.com
So who owns the digital files?
In the end, who owns the digital files depends on what you have specified in your contract. Get everything in writing. Understand which rights you are transferring to your client, and which rights you keep. Specify where and how your work can and cannot be used, and for how long. The more clear and detailed your contract is regarding copyright and ownership, the more you protect your property.
Jacqui MacKenzie is a writer for Straight North, an Internet marketing agency with a team of Chicago Web designers, copywriters, social media experts and more. Straight North’s clients range from stainless steel fabrication specialists to providers of high visibility shirts.