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GUIDE

TO
COPYRIGHT

Copyright defines the ownership of work
created by a designer. Copyright is what
allows a designer to control whether or not
a work may be copied. If the designer
permits a work to be copied, it is the copy-
right that gives the designer the right to
negotiate for fees or royalties. If the client
of a designer is to be protected from the
theft of designs by competitors, it is because
the copyright law gives such protection.
Furthermore, an understanding of copyright
is necessary if the designer is to obtain for
the client appropriate licenses of copyright
from suppliers such as photographers,
illustrators and authors.

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What is copyrightable? but artistic combinations of these Exclusive rights ing. Offering to distribute copies
Work must be original and cre- shapes can be copyrighted. Type- The designer, as the copyright to a group of persons for further
ative to be copyrightable. Here, face designs are also excluded owner, has the exclusive rights distribution or public display also
“originality” simply means that from being copyrightable (see the to reproduce work; license work; constitutes publication. Exhibit-
the designer created the work and chapter “Use of Fonts,” page 40). prepare derivative works, such ing a work on the internet would
did not copy it from someone else. Calligraphy would appear to as a poster copied from a design; also be a publication.
If, by some incredible chance, two be copyrightable if expressed in perform work; and display work.
designers independently cre- artwork, especially insofar as the However, the owner of a copy of
ated an identical work, each work characters are embellished, but the work can also display it. Any-
would be original and copyright- oddly, may not be copyrightable one who violates these rights is an
able. “Creative,” in the Copyright alone, if merely expressed in the infringer whom the designer can
Office’s definition, means that the form of a guide such as an alpha- sue for damages and prevent from
work has some minimal aesthetic bet.Computer programs and the continuing the infringement. If
qualities. A child’s painting, images created through the use of the designer were to have trouble
for example, could meet this computers are both copyrightable. proving actual damages, which
standard. Although the Copyright include the designer’s losses and
Office has sometimes shown a the infringer’s profits, the law
limited understanding of the art- provides for statutory damages
istry of graphic design, especially that are awarded in the court’s
when uncopyrightable elements discretion in the amount of $750
are arranged to create a new de- to $30,000 for each infringe-
sign, most graphic design should ment. If the designer can prove
be copyrightable. that the infringement was willful,
the court, under the copyright
Ideas, titles, names and short law, can award up to $150,000 in
phrases are usually not copyright- statutory damages. Infringers can
able because they lack a sufficient also be required to pay attorney’s
amount of expression. Ideas can fees. However, to be eligible for
sometimes be protected by an statutory damages and attorney’s
idea disclosure agreement, which fees, designs or other works must
expressly provides compensation be registered with the Copyright
if the idea is used by the party Office prior to the commence-
to which it is submitted. Style is ment of the infringement. For
not copyrightable, but specific newly published works, regis-
designs created as the expres- tration within three months of
sion of a style are copyrightable. publication will be treated as hav-
Utilitarian objects are not copy- ing taken place on the publication
rightable, but a utilitarian object date for purposes of eligibility for
incorporating an artistic motif, statutory damages and attorney’s
such as a lamp base in the form fees. It should be noted that the
of a statue, can be copyrighted to copyright law defines publication
protect the artistic material. Basic as the distribution of a work to the
geometric shapes, such as squares public by sale, other transfer of
and circles, are not copyrightable, ownership, rental, lease or lend-

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Fair use Transfers and terminations Copyright notice Copyright duration

Fair use is a limited exception to The copyright law explicitly states The copyright notice is Copyright, Designers now have federal copy-
the exclusive power of the designer that copyrights are separate from Copr. or ©; the designer’s name, right as soon as a design is cre-
(or client, if the designer has the physical design, such as a an abbreviation for the name or ated—without putting a copyright
transferred rights to the client) to mechanical or, more recently, an alternate designation by which notice on it or registering it with
control the uses of designs. Fair use digital storage media. Selling the designer is known to the pub- the Copyright Office. Copyrights
permits someone to use work with- the physical design would not lic; and the year of publication. created after January 1, 1978, as
out permission for a purpose that is transfer the copyright, because For example, notice could take the well as those already existing in
basically not going to compete with any copyright or any exclusive form of © Jane Designer 2009. works not published or registered,
or injure the market for the work, right of use of a copyright must Copyright notice is now optional, will last for the designer’s life plus
such as using a design in an article always be transferred in a written but it should not be considered 70 years. If the designer is an
about the designer’s career. The instrument signed by the de- unimportant. The designer has employee, the copyright term will
court’s tests for whether a use signer. Only a nonexclusive right a copyright as soon as a work is be 95 years from the date of first
is fair or infringing turns on the can be transferred verbally, such created and is no longer required publication or 120 years from
following factors: as when the designer licenses to place copyright notice on the the year of creation, whichever
a design to one client, such as a design at the time of publication. expires first. In this case, how-
■ The purpose and character of the wallpaper company, but doesn’t However, placing the copyright ever, the design will belong to the
use, including whether or not it is make the transfer exclusive so notice on the work, or requiring employer, since it was created as a
for profit that it can also be licensed to that it appear with the work when work-for-hire.
another client, such as a placemat published, has certain advan-
■ The nature and character of the company. Both exclusive transfers tages. If notice is omitted when a
copyrighted work of copyrights or parts of copy- design is published, an infringer
rights and nonexclusive licenses may convince the court to lower
■ The amount and substantiality of copyrights can be terminated the amount of damages on the
of the portion used, not only in by the designer during a five-year grounds that the infringement was
relation to the copyrighted work period starting 35 years after the innocent; that is, the infringer
as a whole, but also, in some cas- date of publication or 40 years wasn’t warned off by a copyright
es, in relation to the defendant’s after the date of execution of the notice. In addition, copyright
work (and this can be a qualita- transfer, whichever period ends notice informs the public as to
tive as well as quantitative test) earlier. This right of termination the designer’s creative authorship
is an important right, but it does of the work. The best course is
■ The effect the use will have on not apply to works for hire or simply to place the copyright no-
the market for the copyrighted transfers made by will. tice on the design before it leaves
work or the actual value of the the studio and make certain that
copyrighted work copyright notice accompanies the
design when published, even if, in
some cases, the copyright notice
on publication may be the client’s
rather than the designer’s.

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Registering creative work deposit materials that will show The copyright forms Group registration

Almost all designs can be reg- what the designer, in fact, created. Most designs would be registered Unpublished works may be reg-
istered, whether published or Groups of unpublished designs on Form VA (which stands for “vi- istered as a group under a single
unpublished. One might ask why can be registered for a single sual arts”). If a designer wants to title for a single registration fee.
one should pay the application fee using an alternative form of register a work with both text and This will dramatically reduce the
fee (currently $35) if copyright deposit, such as slides or copies of design, Form VA should be used expense of registration, and no
protection already exists simply the designs. This greatly reduces if the design predominates and copyright notice need be placed on
by creating the design. There are the expense of registration, since Form TX if the text predominates. unpublished work. The following
several reasons: almost all designs the designs will not have to be Since these classifications are conditions must be met to allow
must be registered in order to registered again when published. only for administrative purposes, for group deposit:
sue, except if the design is not of rights will not be lost if an error
United States origin; registra- The Copyright Office maintains a is made in choosing the correct ■ The deposit materials must be
tion is proof that the statements website at www.loc.gov/copyright. classification. assembled in an orderly form.
in the Certificate of Registration Included on the site are down-
are true, such as that the designer loadable application forms and a Form VA is a simple two-page ■ The collection must have a single
is the creator of the design; and great deal of information about form with step-by-step directions title identifying the work as a
registration is necessary for the copyright, including the latest fee explaining how to fill it out. The whole, such as “Collected
designer to be entitled to the schedules. filing fee and copies of the work Designs of Jane Designer, 2009.”
statutory damages and attorney’s being registered should be sent
fees discussed earlier with respect with the application form to the ■ The person claiming copyright
to infringement. Registration Copyright Office, Library of Con- in each work forming part of the
allows the artist to make a record gress, Washington, D.C. 20559. collection must be the person
of the design and have that record There is also a Short Form VA that claiming copyright in the entire
held by a neutral party—the Copy- is even simpler than the Form collection.
right Office. Since registration is VA and can be used when the
so significant if a lawsuit is neces- designer is the only author, the ■ All the works in the collection
sary, the deposit materials that design is not work-for-hire and must be by the same person or,
accompany the application are the work is completely new. Reg- if by different people, at least
especially important. It is these istration is effective as of the date one of them must have contrib-
when an acceptable application, uted copyrightable material to
deposit and fee have all arrived at each work in the collection. No
the Copyright Office. Although the limit is placed on the number of
certificate of registration will be works that can be included in
mailed later, this will not change such a collection.
the effective date. If there is an
error in a completed registration It is important that a work registered
or if information should be am- when unpublished need not be reg-
plified, Form CA for supplemen- istered again when published. But,
tary registration should be used. if new material is added to the work
or it is changed into a new medium—
creating a substantially different
work from that registered—it would
be wise to register the work again to
protect the changed version.

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Work-for-hire For freelancers, the categories tion of use, geography of use and Sources of copyright

Work-for-hire is a highly prob- of specially ordered or commis- any other description that makes information

lematic provision of the copyright sioned works that can be work- clear what the parties intend. Legal Guide for the Visual Artist
law. If a designer provides services for-hire include: a contribution Ownership of any physical objects (Tad Crawford) contains an
as a work-for-hire, or if a designer to a collective work, such as a contained in the work should also extensive discussion of copyright.
hires a supplier as a work-for-hire, magazine, newspaper, encyclope- be clarified, and may have a bear- Business and Legal Forms for Graphic
the party executing the work under dia or anthology; a contribution ing on whether sales tax has to Designers (Eva Doman Bruck, Tad
the work-for-hire status loses all used as part of a motion picture be charged. Crawford) has forms for copyright
rights, including the right to ter- or other audiovisual work; and applications, copyright transfers,
minate the rights transferred after a supplementary work, which Unless generous compensation licensing and specifying rights
the 35-year period provided under includes pictorial illustrations is given to cover all conceivable either with a client or a supplier.
copyright law. The work-for-hire done to supplement a work by future uses, the designer should
status can come into existence in another author, a compilation, an seek to transfer only limited The Copyright Office makes avail-
two ways: 1) an employee creating instructional text, test or answer rights to the client. The client’s able free information and appli-
a copyright in the course of the material for a test or work for use desire for work-for-hire or all cation forms such as Form VA for
employment; or 2) a freelancer in an atlas. rights is often for the purpose of a work in the visual arts. To obtain
creating a specially ordered or preventing the client’s com- this information, the designer
commissioned work, if the work Commissioned design rarely petitors from using the design or should request the Copyright
falls into one of several categories falls into a category that can be images in the design. The client Information Kit for the visual arts.
defined under copyright law and work-for-hire, as defined under can be protected against such The application forms and Copy-
both parties sign a written contract the copyright law. Corporate competitive use by a simple clause right Information Kit are available
agreeing to consider the artwork attorneys often rely on work-for- in the contract stating: “The from the Copyright Office, Library
as a work-for-hire. hire because they lack complete designer agrees not to license the of Congress, Washington, D.C.
understanding of the tradition of design or any images contained 20559. Forms from the Copyright
creative rights or experience in therein to competitors of the cli- Office can also be requested by
For a design firm this can create defining the limited rights that ent.” This might be accompanied calling a telephone hotline: 202
some problems. For example, their employers actually need. On by the client’s right of approval 707 9100. The public information
since most design firms are the other hand, some firms may over some or any licensing of the number for the Copyright Office is
businesses, this means that the use work-for-hire with the intent design and incorporated images. 202 707 3000. Also, as mentioned
partners in design firms do not of reselling the design in The designer would then have earlier, the Copyright Office has a
own the copyrights for the work some form. to include similar restrictions in website at www.loc.gov/copyright
they create. Since most partners contracts with suppliers. that offers information about
are employees of the firm, the firm Contractual safeguards copyright and the functioning of
owns those copyrights, just as it
Often the term “work-for-hire” the Copyright Office as well as
owns the copyrights created by any
is loosely used to mean a buyout downloadable forms.
other employee.
or the transfer of all rights. It is
If a partner wants rights to what important to understand that
he or she has created, a special work-for-hire is defined in the
contract will be necessary. Also, copyright law, but neither “buy-
a salaried employee may request out” nor “all rights” has a univer-
or negotiate a written contractual sally agreed upon definition. To
agreement that allows the em- avoid ambiguity, designers should
ployee to retain some copyright spell out the rights transferred by
ownership. type of use, media of use, dura-

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engaged in the discipline, practice and culture of designing.
AIGA’s mission is to advance designing as a professional craft, VERSION A AIGA/Adobe official sponsor logo 7.15.03 1:30 p.m. ww

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Founded in 1914, AIGA is the preeminent professional association
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AIGA | the professional association for design Disclaimer: Legal information is not legal advice.
164 Fifth Avenue, New York, NY 10010 This publication provides information about the
212 807 1990 www.aiga.org law designed to help designers safely cope with
their own legal needs. But legal information is
PUBLISHER not the same as legal advice — the application
Richard Grefé, AIGA of law to an individual’s specific circumstances.
Although AIGA goes to great lengths to make sure
our information is accurate and useful, we rec-
EDITORIAL CONTENT
ommend that you consult a lawyer if you want
A Client’s Guide to Design:
professional assurance that our information, and
Joanne Stone and Lana Rigsby
your interpretation of it, is appropriate to your
particular situation.
Use of Fonts:
Allan Haley
Contributing editors: Sam Berlow, IN-KIND PAPER PARTNER

Matthew Carter, Jonathan Hoefler, Arctic Paper
Zusana Licko and Frank Martinez arcticpaper.com
Cover: Munken Polar, 300 g/m
Use of Illustration: Text: Munken Lynx, 130 g/m
Brad Holland and Tammy Shannon
PARTIAL IN-KIND PRINTING PARTNER
Use of Software: Blanchette Press
Business Software Alliance Richmond, BC, Canada
blanchettepress.com
Sales Tax:
Daniel Abraham and Marci Barbey DESIGN
Grant Design Collaborative, Atlanta
Guide to Copyright:
Tad Crawford
PHOTOGRAPHY
Jerry Burns, StudioBurns, Atlanta
Use of Photography:
Tad Crawford
FONTS

Standard Form of Agreement for Design Services: Interstate and Filosofia
Jim Faris and Shel Perkins
COPYRIGHT
© 2009 AIGA
First edition published in 2001.

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