Graphic design and copyright protection… what you need to know
Written by William Miles | July 1, 2021
Let's face it, graphic design is an artform. It's a creative, clever and hugely impressive skill, with little to no parallels to being a lawyer. It's therefore not a big surprise that graphic designers sometimes focus more on the creative aspect of their work than the legal and, in the interest of full disclosure, lawyers tend to be rubbish artists.
However, every so often graphic designers will need to think like lawyers, particularly when it comes dealings with their clients. The big issues to tackle in any instruction are ownership and usage. These can seem like straightforward points but they're all too often overlooked or dealt with in an overly simplistic way. However, there are a few guiding principles that any graphic designer should keep in mind and, armed with these, they should be able spend less time worrying about the law, and more time doing what they do best.
Point 1: Copyright is an unregistered right.
This means that copyright ownership isn't proven with a certificate (at least in the UK), unlike a trade mark, patent or registered design. Instead, evidence is needed to show who created a work and when it was created. Paper trails are key and the 'chain of title' is often of utmost importance in a copyright dispute.
Point 2: Copyright is owned by the author (in the first instance) unless they're an employee working in the course of their employment.
Businesses often assume that if they pay a designer to produce a graphic work, they'll own it. That's not automatically the case and the legal position is that the author is the first owner, unless they're an employee carrying out their normal duties. This fact normally works in favour of the designer but it should be made clear from the outset to avoid a dispute.
Point 3: Copyright can only be assigned from one party to another under a written agreement.
This is key and a written agreement is a must when transferring ownership of a copyright work. Ideally this will be drafted by a lawyer so that the position of the parties is properly set out along with the fees and any relevant caveats.
Point 4: However, copyright can be licensed even in the absence of written terms.
This is another point that can catch parties out. Essentially if the circumstances suggest that Party A expected Party B to use their work for a certain purpose, then even in the absence of a written agreement, the court will probably find that Party B had a licence (this is called an "implied licence"). The problem here is that the licence terms can be hard to decipher and are normally interpreted very narrowly. You won't be surprised to hear that this often leads to a dispute and so it's best to try and avoid this with a properly drafted contract.
Point 4: A copyright licence should be detailed and should cover, at a minimum, territory, exclusivity and term.
Given the risk of an implied licence being unclear, it's best to set it out in writing and properly explain what sort of permission is being granted. For example, a UK, non-exclusive licence to use a copyright work for a period of 1 year. If this is clear then it would be a breach of the licence to use the work beyond the UK or for a period of 2 years. The lack of exclusivity also means that the licensor is free to licence someone else to use their work and typically you would charge more if your client requires complete exclusivity.
It's fair to say that the above doesn't cover every aspect of copyright law but it, if these points can be kept in mind, then it's likely that most common copyright disputes can be avoided. However, if you do encounter any issues, our copyright lawyers are on hand to assist. Just email info@briffa.com to arrange a meeting.
Written by Will Miles, Partner
William Miles
William Miles is a partner at Briffa. He advises on a broad range of intellectual property matters with a particular focus on contentious work.
William speaks regularly on the topic of intellectual property and has written for The Copyright Lawyer Magazine and the CITMA Review, amongst others.