Copyrights and Wrongs Part 1: Getting Clients and Creatives on the Same Page

Copyright law might be one of the most misunderstood areas of creative services, representing a giant hole of knowledge for both the creative and the client. Yet it's a fundamentally important element of the hiring process and as such, needs to be addressed. When it's not, both parties are far more likely to make assumptions that may come back to haunt them legally (and financially). If you're going to hire a creative studio (or if you work for, or run, one), you need to know how copyright works.

Please note that I am not a lawyer. If you are a lawyer, please feel free to add clarifications in the comments. There are also additional references at the end of this post for further reading.

What is copyright?

Copyright, at its simplest, is just a form of legal protection for a person's intellectual property. The definition of intellectual property, of course, can get very broad and fuzzy—how, for example, can black-and-white laws be applied to intangible concepts and ideas? Copyright attempts to address this dilemma by covering only "original works of authorship fixed in a tangible medium of expression." In plain English: copyright law covers an idea in its tangible form.

Copyright is a set of laws, and the set consists of two primary elements:

• Ownership Rights
  Ownership automatically belongs to the author of the work as soon as the work is produced. The copyright owner is the only party who can claim authorship of the work, and is the only party who can dictate usage rights.
  
  
• Usage Rights
  Usage rights encompass a whole set of individual rights dictating how the work may be used: the right to reproduce the work, the right to display the work, the right to modify the work or make derivative versions, and several others.
  

So what, exactly, is being copyrighted?

I've heard countless complaints from designers who discover that the brochure they created for their client has been appropriated for use on the client's website—without permission. And from writers who find the article they wrote for a print magazine has been posted online—without additional pay. These issues often stem from a client who doesn't understand the difference between the file they're receiving and the work contained in that file.

When a client pays for a creative work, they often assume that they're purchasing the whole creative work, and not the individual licensing of it. So they get the file, and figure they can use it whenever and however they want. They can cut and paste, rearrange it, use pieces of it elsewhere. But unless there's a signed contract explicitly granting the client either ownership rights, unlimited usage rights, or rights to modify the work, the client may not do these things.

Remember: unless the contract explicitly states otherwise, the creative work is not being sold in the transaction—the rights to use it are. So, when you get a file, you can use that file exactly how the contract stipulates and no more.

Addressing copyright in the contract

When an original work is created, the entire copyright (including both ownership and all forms of usage rights) automatically belongs to the creator of the work, whether or not the creator actually registers the work with the U.S. Copyright Office. The creator can only lose these rights if s/he signs them away to another party. This is typically done by written contract, and it's the only way to ensure both parties are protected.

Signing away ownership rights to a work is a controversial decision among creatives, since this means the author no longer has any legal right to claim authorship ("I made that"), or to display the work at all, including to promote oneself. This is a significant enough issue that I'll be addressing it in more detail in an upcoming post about work for hire agreements. Suffice it to say, it is in the creative's best interest to hang onto copyright ownership of any work created. That it's in the creative's best interest, however, does not mean that the client gets slighted in this situation. Clients commonly misunderstand copyright law, assuming that they must have ownership rights in order to successfully use the work they've commissioned. But this isn't necessarily the case.

Because usage rights can be bundled in any number of ways, and can be as limited or broad in scope as the parties agree to, they are extremely flexible—which is why clients and creatives should focus the bulk of their negotiations here. Usage rights can limit reproduction to a geographical area, for example, or can allow for the display of the work both online and in print. This flexibility is extremely favorable to both client and creative—reaching a mutually beneficial arrangement becomes a matter of both parties being willing to recognize the needs of the other, and expand or limit the bundle of usage rights accordingly.

Reaching a mutually beneficial arrangement

I use this phrase—mutually beneficial arrangement—a lot. It's the cornerstone of what I do and what I believe. My business operates under the assumption that all parties involved (that's me, my client, and everyone else impacted directly or indirectly by the work we produce together) need not get the short end of the stick when it comes to fair treatment. Many businesses operate using a very different principle; I've turned away several potentially profitable clients who believe that for one party to succeed, the other has to sacrifice.

To ensure successful copyright negotiations, several things need to happen in the following order:

1. Both parties need to commit to keeping the process reasonable, level-headed and fair.
2. Both parties need to understand the legal issues involved.
3. Both parties need to retain the specific rights that will enable the success of the project itself.
   

Each of these steps brings with it its own hurdles, of course. But by committing to them, creatives and their clients will together get through what can otherwise be a cantankerous, tedious, or simply ignored process. It also happens to lay an important foundation for the success of any creative project.



Further Reading:
US Copyright Office
AIGA's Guide to Copyright (PDF download)
AIGA's Standard Form of Agreement for Design Services (PDF download)
Poynter Online's massive list of copyright resources

Copyrights and Wrongs Series
Part 2: Starting the Copyright Conversation