Copyright and graphic design
If you are lucky enough to work in the design industry, then your job involves the creation of intellectual property on a daily basis. And, on the opposite side of the table, if you’ve ever engaged a design or marketing professional, then you’ve likely had the pleasure of commissioning the creation of intellectual property.
A new logo design, a brochure, an annual report – each of these involve one or more kinds of intellectual property rights. The most common kind of intellectual property right in the context of graphic design is copyright.
Copyright is important because it gives the owner the ability to control how the work is used. Disputes can often arise between designers and clients about exactly what the client ‘paid for’ and therefore what IP rights the designer retains and what rights the client obtains, not only in relation to the end-product but also other materials created in the design process such as RAW or native files.
But before we delve any further into these disputes, a quick copyright primer.
Copyright is essentially a ‘bundle’ of exclusive rights that their owner can exercise in relation to defined categories of ‘copyright works’. Common copyright works that everyone would be familiar with are literary works (eg a book, a newspaper article) and artistic works (eg graphic designs, photographs). One of the most important rights in the ‘bundle’ of rights is the right of reproduction – ie the right for a copyright owner to make a copy of their work. When someone else other than the copyright owner reproduces or ‘copies’ the owner’s work without permission, they are potentially infringing copyright.
Copyright lasts for a fixed period of time and cannot be renewed. Generally speaking, in Australia, copyright in an artistic work lasts for the life of the author plus 70 years.
When a graphic designer creates a new design, the client will be often receive the end-product (or ‘deliverable’) in a print-ready or work-ready format. In the case of a logo design, for example, this means the client receives an image file (usually in .JPG or .PNG format) containing the logo which it can then use on its business cards, website etc.
In order to arrive at that print-ready file, however, the designer has usually created one or more ‘RAW files’ which form the basis for its designs. It’s not a perfect analogy, but a RAW file is like a graphic designer’s source code or blue print – it enables the designer the flexibility and freedom to edit, change and modify their design. The image file (which is what the client typically receives), on the other hand, has far less flexibility and the only changes you can typically make to an image file are to its size, orientation and colour/brightness and, of course, cropping.
Who owns the RAW files?
Disputes often arise because expectations on either or both sides of the table have not been clearly communicated. In the context of graphic design engagements, a disconnect between what the client expects to receive from their designer and what the designer expected to deliver can be fertile ground for a copyright dispute.
In most if not all cases, disputes can be avoided by addressing these expectations in the Terms & Conditions or written agreement the designer and client negotiate for the particular job. One common way this issue is addressed is to agree a price for the hand-over of the RAW files (if desired) before the project begins.
But what happens if the terms are not clear, or silent on the issue of RAW file ownership?
The Copyright Act 1968 sets out the default position in Australia which is that the author of an artistic work (such as a graphic design) is the first owner of copyright in that work. One important exception is copyright works created for State and Federal government bodies – these are automatically owned by the government, unless modified by agreement. There are several other important exceptions to this rule (eg works created in the course of employment) but they are beyond the scope of this article.
So if the graphic designer owns the copyright ‘by default’ in the absence of any express agreement on the issue, what rights does the client have in this scenario?
The established legal principles in Australia provide that where a graphic design arrangement is silent on the issue of IP ownership, the graphic designer will, in accordance with the default position under the Copyright Act, retain copyright ownership of the artistic work in the design, but will be required to grant a limited licence to the client to use the design for the purpose contemplated by the parties.
If the ‘purpose’ included the client’s ability to edit and modify the design, there may be an argument that the licence includes a licence, not only to the image file, but the relevant RAW files as well.
In some cases (eg where the design is for a logo that will be used as a trade mark), the law might even imply an assignment (ie a complete transfer of rights rather than a mere licence) of the copyright from the designer to the client in the logo and potentially the underlying RAW files.
A matter of perspective
In our experience, there are often good reasons why a client will want to own the RAW files and similarly good reasons why the designer will want to retain ownership.
A designer principally wants to retain artistic control of their work. By giving away the RAW files, they are essentially handing over their ‘blue print’ of their design for anyone else (including a competitor) to modify. This can affect their ability to do future work for the same client if that client can essentially go elsewhere. There are also issues of artistic integrity and reputation to consider when the RAW files can be modified by someone else to create a new design that might still be associated with the original designer in some way.
Understandably, a client’s perspective may be that they ‘paid for it’, therefore they should ‘own it’. The client may also have an expectation that they can make changes to the design themselves based on their previous experience with other designers.
No one’s perspective is invalid, but it is how these perspectives (and the expectations that arise from them) are managed that will provide the keys to avoiding a dispute.
Avoiding a dispute
Whether you are a graphic designer or a client, disputes should be avoided. They can be costly, the result is often uncertain, and they can cause unnecessary distractions for you and your business. So what can you do?
Be up-front and discuss copyright ownership before beginning the project. Specifically, discuss who should own (or have access to) the RAW files. This should be informed by at least the following considerations:
What is the scope of the project?
In what business/strategic context does it sit? Does it have fixed life (eg a single brochure) or is indefinite (e.g. a company logo)?
What price will the designer charge/is the client prepared to pay for ownership of the RAW files based on the above (and any other relevant) considerations?
In handing over RAW files, the parties should also be aware of third party rights in any fonts or stock image/vectors that may be embedded in the RAW files. You should always review any applicable End-User Licence Agreement for these embedded works to understand the designer’s ability hand-over fonts and stock images as part of a RAW file. Practically speaking, this issue can often be solved by the client obtaining their own licence to the fonts and stock images/vectors.
As with any contractual relationship, beginning with an open and transparent dialogue about each party’s objectives can go a long way to avoiding disputes down the track. In this way, intellectual property should be seen as a useful tool (and one of many) to help the parties reach their commercial objectives and protect their legal interests.