Design & Copyright: What Do You Own?
We have written about new trademark laws in Canada but another often misunderstood intersection in design and law is copyright law. Although we suggest that anyone with detailed questions speak with their lawyer about their specific circumstances, we wanted to give a brief overview of copyright in Canada. In short, unless you have hired a graphic designer as an employee, copyright belongs to the designer unless otherwise negotiated.
This article is for the purpose of interest and should not constitute legal advice. Contact a lawyer with knowledge of your specific case to assist with any legal questions.
What is Copyright?
Copyright is one of five areas of intellectual property law that also includes trademarks, patents, industrial designs and confidential information. Copyright law protects literary, musical, dramatic and most importantly for the purposes of this article, artistic works. Work created by a graphic designer or design firm for items including but not limited to brand identities, posters, social media graphics, business cards or anything else you could think of a designer creating for a business falls under the category of artistic works in copyright law. Copyright allows the creator the exclusive right to create copies of their work or allow someone else to do so.
Who Holds the Copyright?
In most cases the copyright is held by the creator of the design unless otherwise stated in a written agreement. Here are a few samples clients might come across although they are not inclusive of all the examples possible.
Jane Doe is hired as a freelancer by a ACME Stuff to create a brand.
The key here is that Jane was hired by ACME Stuff as a freelancer. Jane retains copyright to any designs she creates by default including rejected designs as well as the final design. To allow ACME Stuff to utilize her brand work she can licence the final brand to ACME Stuff or transfer ownership to ACME Stuff by putting a clause in her contract doing so. The type of licensing or transfer is one of the many things that may affect the cost of Janes services. It is worth noting that in many cases Jane would have a clause allowing her to showcase the work for promotional purposes for use in a portfolio. These same rules would apply if ACME Stuff had the brand work done by a design firm but instead of the copyright belonging to one person it would belong to the firm until licensed or transfered.
Jane Doe is hired as as an employee by a ACME Design, a design firm, as a graphic designer to work on their projects.
As an employee of ACME Design, copyright for Janes designs will be owned by ACME Design by default. This would be the same if Jane was an employed in as a graphic designer in a marketing department of a non-design company such as a bank and even the government. When it comes to Jane using any work for ACME Design in her portfolio, she can not by default use the work online as that would create a copy of the work, however, copyright permission may not be necessary for a print portfolio although Jane should still clear any confidentiality issues with her employer before utilizing the work.
Moral Rights
So far we have covered what are called economic rights when it comes to copyright claims. Another right is the moral right to the work. This is the right to protect the creators reputation as a creator. Moral rights allow the creator the right to be identified as the creator or not or to use another name and allow the creator the opportunity to prevent use of their work in areas where its use could hurt their reputation. An example of this is a designers work being used for a pro-life campaign where the creator is well known to be pro-choice. Moral rights can not be licensed however creators can sign a wavier saying that they will not exercise them.
Length of Copyright
As of the writing of this article the length of copyright protection in Canada is the life of the author plus 70 years.
So Who Holds Copyright on OmniWorx Design’s Projects.
This is something that we can negotiate with clients but in general our project fees include transferring copyright ownership of the final deliverable only to our client once the project is paid for in full.
Sources
Harris, Lesley Ellen. “A Designer's Guide to Intellectual Property.” The Business of Graphic Design: The RGD Professional Handbook, 3rd ed., The Association of Registered Graphic Designers, Toronto, ON, 2018, pp. 98–119.
About the Author - Jack C. Henry
A graduate of OCAD University’s Graphic Design program, Jack blends art with real-world business strategy. The result? Creative solutions that add value to your business. Jack has designed for a wide range of industries including restaurants, retail stores, health care, community organizations and charities. As well as helping companies develop their brand, he creates beautiful marketing materials and signage.
About OmniWorx Design.
OmniWorx Design is a boutique design firm providing graphic design, branding, marketing services to individuals, small & mid-sized businesses. More...