IP Info: How To Protect Your Intellectual Property
These FAQs are for general guidance only. Specific legal advice should be taken depending on the precise facts in question.
Graphic Design/Art
> Clients using my work for more than what was originally agreed?
I am a graphic designer. 18 months ago I did some work for a client on a new store concept which the client was planning to open in London. The store opened last month and has attracted a lot of media attention. I hear that the client is planing to open other stores. My fee was quite small. I was told by the client that fees would have to be low as this was a new venture which may not work out although the client itself is quite a large company. Is there anything I can do? Can I approach the client and ask for an additional payment?
Briffa says: Where 2D work is commissioned and nothing is said about copyright, the legal title belongs to the creator of the work. In this case that means you. That said, you always need to look at what was agreed at the time between the creator and the client to establish whether the client has a right (lawyers call this an equitable right) to ask that the legal title in the copyright be transferred to them. In this case, you were asked to keep the fee low on the basis the concept may not have worked. Conversely there is by implication a right to ask for a further fee where the work is used more extensively. You should approach the client on that basis and perhaps agree an additional fee for each site use of the concept. For the future you should think about the terms on which you wish to provide your skills to others and what is appropriate remuneration for the work you do. Getting yourself terms and conditions which work well for your business is the best way of taking control of these situations and making sure that you get fair pay for your work.
> Can I get more recognition for my work?
I have agreed to take on a graphic design project for a registered charity. The project is exciting and I think that it will be great for my portfolio. I am not being paid very much but I was wondering if as part of our agreement I could ask the charity to credit me for the designs I produce?
Briffa says: As the creator of the original works you are entitled to ask to be credited. You should raise this with the charity and agree where and how your name will appear
> Can I get more work?
I have been asked to contribute content to an advertising agency which they can include in their pitch. If I do this am I guaranteed the work if the pitch is successful?
Briffa says: No, unless you agree that this is to be the case with the advertising agency as a condition of you providing the content for the pitch. There is no obligation on the advertising agency to subcontract relevant work to you just because you have provided the content at a nominal rate believing that you would be granted such work as flowed from the pitch. A simple letter setting out your position on this point and asking the advertising agency to confirm their agreement will prevent the likelihood of this happening to you again.
> I have been commissioned to create a work - who owns the copyright in it?
The general rule is that copyright will remain with the artist (even if the work has been sold) unless (a) the artist expressly agreed that the commissioner would own the copyright or (b) it can be implied from the circumstances that it was equitable that the commissioner own the copyright (eg, the work was created for a specific, commercial purpose, although this does depend on the precise facts).
Content supplied by Tarlo Lyons
> A website displays an image of one of my works with no attribution and the image is distorted - can I object?
In order to display your work the website owner will have had to first copy it (i.e. reproducing all or any substantial part of it - this includes copying by electronic means) and then communicate it to the public (by placing it on the website), in each case potentially infringing your copyright, unless you either consented to this or the owner can rely on a fair dealing defence or copyright exception (eg, he is a dealer and is advertising the work for sale).
Your moral rights may also be infringed (rights of attribution and integrity).
Content supplied by Tarlo Lyons
> I have written a software program that creates digital works: who owns the copyright in them?
The software program will itself be protected by copyright and the creator ("author") of it will own the copyright unless they were employed at the time and the work was created in the course of their employment (in which case the copyright belongs to their employer).
How are you using the software? If it is simply a tool but you control how it is used, then the work created by using the software will be your copyright. But, if you simply press a button and the software creates a computer-generated work, (ie "the work generated by computer in circumstances where there is no human author") then the copyright will be owned by "the person by whom the arrangements necessary for the creation of the work are undertaken." Note: There is considerable debate about what these words actually mean in practice.
Content supplied by Tarlo Lyons
> My work uses images taken off the Internet. They're public domain aren't they?
Under English law a work can be a "public domain" work if
(a) copyright in it has expired (probably unlikely as, under English law, a photograph of a painting qualifies for copyright in its own right even if the artistic work is itself out of copyright: copyright usually lasts for the artists/photographers life plus 70 years after death), or
(b) the copyright owner has in effect renounced or waived their copyright or made clear that the work can be freely reproduced. Simply putting an image on the Internet does not amount to putting it in the public domain: ideally you should check the copyright terms on each website you use.
Content supplied by Tarlo Lyons
