The U.S. Copyright office does not offer much help when it comes to looking for simple clear advice on digital rights, license and transfer. In fact, this grey area has fuelled the RIAA vs the World battle for several years now and left artists and designers repeatedly asking each other how to deal with infringement and control use of their work.
When it comes to art, nothing is truly original. In design, you will rarely find a website or graphic work that does not contain some element created by someone else – an icon, brush, vector, and so on. Only in illustration and traditional art can we believe something may be wholly the product of the creator. This does not mean that the end result cannot and should not be protected. In terms of web and graphic design for hire, the most common question I see is who really owns the work, and how should the creator handle copyright?
The creator of a work always owns the rights to it originally. Even when creating works for hire, under a freelance contract or agency, employer or recording contract, the work is still the creator’s until specifically transferred. Many employers will work a clause into your employment contract that talks about rights to any work you create, but these clauses are often poorly worded and open to intense interpretation. Does it specify where the work must be completed? What kind of work? Does it specifically exclude your rights or simply state that your employer has rights to the work (also)?
In regards to freelance photography and design, your work is technically copyrighted when it is created and the file is encoded with a creation date that is hard to fake. For photos, the EXIF data is your best defense. While these technicalities exist, it is important for you to take specific measures to protect your work through the use of your editing tools, plugins or services. Digimarc is a plugin for Corel Photo and Adobe Photoshop that will encode the photo with a copyright notice that is very hard to remove, whereas your EXIF data is easily lost if the image is put through a filter or two. A premium subscription gives you access to Digimarc’s tracking service which can find your photos anywhere on the internet where the digimarc still exists. A DMCA takedown notice can be issued to the user or the user’s webhost where infringement is discovered.
I personally use a service called Myows, which helps to protect all forms of digital art, including writing. Files can be uploaded, multiple versions attached and Myows creates a serial number and license entry for each. In the event infringement is discovered, a DMCA can still be issued with the additional punch of Myows copyright declaration. Since they are a third party attesting to the validity of your right, you have a much better chance of winning a court case if it ever came to that.
But even if you use tools or services to protect your work, the question remains how to educate your clients about their rights to it. We see software licenses every day when installing software or signing up for a new service. Your terms of service and use should not be that different. There are two elements to the art of good licensing of your work: the copyright statement in your initial work contract or terms of service, and the transfer of copyright after payment has been received.
As explained by the AIGA standard form of agreement for design services, discussions with your client about independent contractor status and about ownership and use of project deliverables are sometimes complicated by confusion over the related concept of work-for-hire. This phrase comes from U.S. copyright law. It refers to original work made by an employee within the scope of his or her job, in which copyright ownership automatically belongs to the employer. However, it can also refer to original work made by an independent contractor or a design ﬁrm, in which copyright ownership might automatically belong to the client. This is only true if the work meets very speciﬁc criteria—it must be specially ordered or commissioned, and it must fall within one of nine categories, of which the following relate to the artistic field:
- A contribution to a collective work (such as a magazine, an anthology or an encyclopedia)
- A work that is part of a motion picture or other audiovisual work (such as a website or multimedia project)
- A supplement prepared as an adjunct to a work created by another author(such as a foreword, an appendix or charts)
- A compilation (a new arrangement of pre-existing works, such asa catalog)
- An instructional text (whether it is literary, pictorial or graphic)
Also, a written agreement must be signed by both parties saying that itis a work made for hire. If the project doesn’t meet all of these criteria,work-for-hire does not apply. For this reason, it is important your contract contain both this definition, and a copyright statement.
The statement itself can be simple or elaborate and depends on the kind of work you do. Below are two examples:
You retain all rights. In this case, you do not even transfer any rights to the client. This usually only works with photos, web designs or materials that will not be used for marketing. Most graphic design work will require a license or transfer to some extent, but that is not to say you will be giving away complete right to the work.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and locationas incorporated by Designer in the Deliverables, or as otherwise directedby Designer. Designer retains the right to reproduce, publish anddisplay the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposesof recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection withsuch uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
Reservation of rights with provision for transfer or license:
All rights not expressly granted hereunder are reserved to Designer, including but not limited to all rights in sketches, comps, or other preliminary materials. The client shall receive finished works in a web-ready format. For graphic design works, files are delivered in a print-ready format or pre-formatted for their intended use based on project scope.
Copyright is in Designer’s name. Upon completion of Work, the copyright will only be released to the Client upon the exchange of Copyright Release or License Agreement.
A “transfer of copyright ownership” is an assignment, mortgage, grant of an exclusive license, transfer by will or intestate succession, or any other change in the ownership of any or all the exclusive rights in a copyright, whether or not it is limited in time or place of effect. It does not include a nonexclusive license. A transfer of exclusive rights, other than by operation of law, is not valid unless an instrument of conveyance (for example, contract, bond, or deed) or a note or memorandum of the transfer is in writing and is signed by the owner of the rights conveyed or the owner’s duly authorized agent.
Transfer and license of a work should only ever occur after you have been compensated in full. While the U.S. Copyright office does not provide a specific format for transfer of rights, they will recognize any license or document describing the terms of transfer, particularly if it is registered with them. You are not legally obligated to submit transfers to them – as long as your license or transfer contains a clause pertaining to electronic acceptance and validity, your document is as sound as your original contract.
The document itself does not have to be very elaborate. At a minimum it should contain text identifying you and your client, the date the transfer or license went into effect, the terms of transfer, and a list of rights the author (you) is retaining.