Copyrights and Wrongs Part 2: Starting the Copyright Conversation

This is part two of an ongoing series on copyright issues for creatives and their clients. For part one, see Copyrights and Wrongs: Getting Clients and Creatives on the Same Page.

For any communications project to get off the ground, there needs to be a contract spelling out the terms of the arrangement. Simple enough, right? But whichever side of the hiring process you’re on, you’re probably familiar with the various issues that can come up when that first draft gets passed around. This installment of Copyrights and Wrongs will focus on the early stages of this process, and how both creatives and clients can get the most out of it without feeling they have to give anything up.

In the first installment of this series, I mentioned the three underlying factors that need to be present for the process to really work:

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

Creatives who just work for a paycheck, and clients who hire based on price alone, are unlikely to fully commit to the above attitudes. But those who value creative communications for the purposes they serve and the impact they can have will quickly recognize that a mutually beneficial arrangement will elevate the quality of the work and, therefore, the power that work has in the real world. While copyright may be just one piece of the contractual puzzle, it is a fundamentally important one (as spelled out in Part One), and deserves your full attention.

Don’t Make Negotiation a Dirty Word

While you can certainly frame the copyright conversation as a contest or power trip, I've found that copyright negotiations go down much easier if you approach the whole subject as a matter of fact. Water tends to rise to its own level; a nonchalant attitude tends to keep emotions at bay, which inevitably brings objectivity to the process.

Nonchalance, however, is not the same as evasiveness; creatives should be clear about the copyright arrangement they recommend, and make sure their client understands exactly what that arrangement means. It's entirely appropriate for clients to ask plenty of clarifying questions at this stage, such as:

• Am I limited in my use of the design across other platforms (transferring a brochure onto the web, for example)?
  
• What happens if I need to reprint/reproduce the project down the road?
• What kind of files will I own (rare is the designer who includes the layered computer files, and the client needs to know this)?

Of course, creatives who have proposed a fair copyright arrangement and explained it clearly will have fewer questions to answer.

What’s Fair is Fair, For Everyone

Given the state of business today, in which there inevitably seems to be a winner and a loser in every exchange, negotiating parties almost always enter the process desperate to avoid being pushed onto that losing side. But it doesn't have to be this way; if both the creative and the client enter the process with the understanding that the relationship, to be successful, must allow for both parties to succeed in the long term, the most appropriate copyright arrangement becomes the one in which the client may use the material in the specific ways they need to, and the creative is compensated enough to remain profitable.

Both aspects of this type of arrangement may at first appear to be entirely subjective. The client may feel they should be entitled to use the work in perpetuity (forever), in whatever format they like. While this may very well be an appropriate arrangement for projects like logos, in which the purpose of the creative work is to represent the client across multiple platforms over a long time, there are several reasons why all rights language is almost always not in the best interest of either party:

1. First, the more a client uses a work—via reprints, or across multiple platforms—the greater impact the work has and, therefore, the more valuable it becomes. The designer, then, should be fairly compensated for this added value. For many projects, though, it just doesn't make sense for a client to purchase these blanket usage rights up front if there is no foreseeable need for them. Limiting the initial usage rights, then, provides the opportunity for the client to pay for additional rights when they're good and ready to (or, more importantly, when they can afford to), while the creative is paid for the fair value of the work.
   
   
2. Second, agreeing on only the usage rights the client will need in the foreseeable future gives the client a way to ensure the work will be successful for them on a limited basis, rather than investing in full rights before the work has been given a chance to...work. The creative, then, has greater incentive to produce effective work, since measurable impact is more likely to result in future work.
   
   
3. Finally, holding off on all rights language reduces the likelihood that the project—which is customized for the specific needs of the client at the time of creation—will get stale. A brochure created for a sustainability consultant, for example, will likely be ineffective and inappropriate a couple of years down the road, when the consultant’s business has grown, their services have changed, and their messaging has evolved. Why should a client pay long-range fees for a piece with a limited shelf life?

There are, of course, some situations in which all rights language is appropriate; logos, for example, require indefinite use by a business across multiple platforms. In these cases, a good client will recognize that this flexibility is worth more.

Whichever rights are ultimately agreed to, both parties should feel they have gotten what they need for their business’ long-term success. Honest and open conversation about the advantages and disadvantages to both parties is, therefore, essential.

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

Is crowdsourcing dangerous to the design profession?

No!Spec is a well-known movement among graphic designers who dislike the notion of speculative work. And yet thousands of designers at both the professional and amateur level participate in speculative contents every day, and their numbers are growing. 37Signals has an interesting take from crowdSPRING co-founder Ross Kimbarovsky in which he argues, in part:

"The establishment has long held that these ‘amateurs’ – students and stay-at-home moms, freelancers and fed-up corporate refugees – are nothing more than a novelty and are not capable of competing with the ‘professionals.’ The establishment is wrong. The Internet has blurred the boundaries between professionals and non-professionals. The underdogs are challenging tradition in industry after industry. They are risk takers. They are true entrepreneurs. The underdogs compete on their ideas and their work, not education, training, and fancy offices. They make things they like and they hope that other people will like them too.The underdogs are a threat to AIGA and the NO!SPEC campaign. There are millions of them. They demand that a level playing field be created to allow them to compete. They demand the democratization of the design industry."

Incendiary stuff. He then goes on to say, "We’ve created a level playing field where experience doesn’t matter. The only thing that matters is your work." Now that feels like an oxymoron. Most professional designers (including this one) would argue that experience informs your work. But more than that, it disregards the rest of what makes good design: context, relationships, research, and in-depth understanding of the client and their goals.

And this is evidenced by Kimbarovsky's disclosure that "Our overall average across all projects is about $350." For an independent creative getting paid, say $50 an hour (a very low number, given the overhead required to sustain an independent business), this means a 7-hour project. Seven hours for adminsitrative tasks, market and client research, concepting and sketching, production, and revisions. Really? It would take a highly skilled and experienced designer to produce a good-looking and effective logo, website, brochure, etc in that amount of time.

There's a lot more to say about this subject, and I'll explore some of it later in an upcoming installment of Copyrights and Wrongs (first, though, I'll be looking at the contract negotation process).

Copyright Licensing In Action: The $300,000 Tattoo

Sometimes timing is everything. Having just posted an exploration of copyright and licensing for creatives and their clients, I stumbled on the perfect example of it all in action. To make an absurd story short, a Swiss artist has sold an image he created to an art collector for approximately $300,000. The kicker? The artwork is inked onto another man's skin.



From what I can gather from the press release, contractual arrangements include the following copyright issues:

• The creative work (the image of a Madonna underneath a skull replete with standard bits of tattoo flash) is copyrighted to Wim Delvoye, the artist who created the image.
• Limited ownership of the physical form of the work (the tattoo itself) has obviously been granted to Tim Steiner, the man whose back is displayed in the photo above.
• Full ownership of the physical artwork, however, has been granted on a deferred timetable to the art collector who purchased the work; the skin bearing the tattoo will be removed from Steiner's body upon his death, and be transferred to the collector.
  
• Limited usage rights have been granted—either to Steiner, the collector, or both depending on the contract verbiage—allowing the work to be displayed three times a year in both public and private shows.

The gallery, reports SwissInfo, says "the sale was an 'integral part of the work itself' and describes the contract as a dissertation on the definition of an artwork, the art market and the ethical and legal questions it raises." Indeed.

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

Copyrights and Wrongs Part 2: Starting the Copyright Conversation

This is part two of an ongoing series on copyright issues for creatives and their clients. For part one, see Copyrights and Wrongs: Getting Clients and Creatives on the Same Page.


For any communications project to get off the ground, there needs to be a contract spelling out the terms of the arrangement. Simple enough, right? But whichever side of the hiring process you're on, you're probably familiar with the various issues that can come up when that first draft gets passed around. This installment of Copyrights and Wrongs will focus on the early stages of this process, and how both creatives and clients can get the most out of it without feeling they have to give anything up.

In the first installment of this series, I mentioned the three underlying factors that need to be present for the process to really work:

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

Creatives who just work for a paycheck, and clients who hire based on price alone, are unlikely to fully commit to the above attitudes. But those who value creative communications for the purposes they serve and the impact they can have will quickly recognize that a mutually beneficial arrangement will elevate the quality of the work and, therefore, the power that work has in the real world. While copyright may be just one piece of the contractual puzzle, it is a fundamentally important one (as spelled out in Part One), and deserves your full attention.

Don't Make Negotiation a Dirty Word

While you can certainly frame the copyright conversation as a contest or power trip, I've found that copyright negotiations go down much easier if you approach the whole subject as a matter of fact. Water tends to rise to its own level; a nonchalant attitude tends to keep emotions at bay, which inevitably brings objectivity to the process.

Nonchalance, however, is not the same as evasiveness; creatives should be clear about the copyright arrangement they recommend, and make sure their client understands exactly what that arrangement means. It's entirely appropriate for clients to ask plenty of clarifying questions at this stage, such as:

• Am I limited in my use of the design across other platforms (transferring a brochure onto the web, for example)?
  
• What happens if I need to reprint/reproduce the project down the road?
• What kind of files will I own? (Rare is the designer who includes the layered computer files, and the client needs to know this.)

If, as a creative, you're not hearing these questions, it might be wise to address them anyway. Because creatives who propose a fair copyright arrangement and explain it clearly from the get-go are likely to run into fewer problems later.

What's Fair is Fair, For Everyone

Given the state of business today, in which there inevitably seems to be a winner and a loser in every exchange, negotiating parties almost always enter the process desperate to avoid being pushed onto that losing side. But it doesn't have to be this way; if both the creative and the client enter the process with the understanding that the relationship, to be successful, must allow for both parties to succeed in the long term, the most appropriate copyright arrangement becomes the one in which the client may use the material in the specific ways they need to, and the creative is compensated enough to remain profitable.

Both aspects of this type of arrangement may at first appear to be entirely subjective. The client may feel they should be entitled to use the work in perpetuity (forever), in whatever format they like. While this may very well be an appropriate arrangement for projects like logos, in which the purpose of the creative work is to represent the client across multiple platforms over a long time, there are several reasons why all rights language is almost always not in the best interest of either party:

1. First, the more a client uses a work—via reprints, or across multiple platforms—the greater impact the work has and, therefore, the more valuable it becomes. The designer, then, should be fairly compensated for this added value. For many projects, though, it just doesn't make sense for a client to purchase these blanket usage rights up front if there is no foreseeable need for them. Limiting the initial usage rights, then, provides the opportunity for the client to pay for additional rights when they're good and ready to (or, more importantly, when they can afford to), while the creative is paid for the fair value of the work.
   
   
2. Second, agreeing on only the usage rights the client will need in the foreseeable future gives the client a way to ensure the work will be successful for them on a limited basis, rather than investing in full rights before the work has been given a chance to...work. The creative, then, has greater incentive to produce effective work, since measurable impact is more likely to result in future work.
   
   
3. Finally, holding off on all rights language reduces the likelihood that the project—which is customized for the specific needs of the client at the time of creation—will outlive its efficacy. A brochure created for a sustainability consultant, for example, will likely be ineffective and inappropriate a couple of years down the road, when the consultant's business has grown, their services have changed, and their messaging has evolved. Why should a client pay long-range fees for a piece with a limited shelf life?

There are, of course, some situations in which all rights language is appropriate; logos, for example, require indefinite use by a business across multiple platforms. In these cases, a good client will recognize that this flexibility is worth more.

Whichever rights are ultimately agreed to, both parties should feel they have gotten what they need for their business' long-term success. Honest and open conversation about the advantages and disadvantages to both parties is, therefore, essential.

Copyrights and Wrongs Series

Part 1: Getting Clients and Creatives on the Same Page

I wonder what will this be used for: Scanning crowds for brands and logos

From BBC News:

"The Metropolitan Police is looking into technology which can automatically identify branded logos on clothing...The concept is being considered by Detective Chief Inspector Mick Neville of Operation Javelin, who project manages the Visual Images, Identifications and Detections Office roll-out programme: a pioneering effort to turn the analysis of CCTV into a forensic discipline like fingerprint or DNA analysis...'What they do is they tend to go out in a kind of uniform, if you see a kid in a brand of 'hoodie' you can be pretty sure he'll be wearing that same brand of 'hoodie' the next time he commits an offence.'"

I guess when they say the clothes make the man, they really mean it.

Programs like these raise some pretty big issues: is spying on an innocent citizenry inherently bad? Even if used for good? How do we keep the technology and/or access to the already established systems out of the hands of those who would 1) do us harm, or 2) use the information against our will to achieve any number of ends (including marketing to us)?

I am by default opposed to systems—particularly government-sponsored systems—that collect information about my person without my explicit permission in order to advance their own cause. I'd like to just be left alone. But, of course, that's now impossible in this day and age. So how do we come to terms with a program like the Visual Images, Identifications and Detections Office?

I'm not sure what the answer is, but I know the whole thing creeps me out.

[full story via Murketing]

Unmarketable: Read This Interview

From Anne Elizabeth Moore, author of Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity:

"...those of us that actually are dedicated to ethical, sustainable, and autonomous cultural production—is really tiny, and kinda lonely, and we’re rapidly running out of beer. And all we can do when we run into each other is sigh deeply."

Read the whole interview with her on Murketing; it's worth it.

A Serious Blow to Internet Censorship?

Right on the heels of my recent post about internet censorship comes what might very well be a solution. Picidae is an project created to bypass governmental spying and censorship via the internet. The project has seen a mild flurry of publicity across the internet as it nears release, and now as I try to load the site once again, I get an internal server error. Uh-oh.

The program (which, I believe, was developed by someone in Germany) is based on the technique used by governments like China in which a user's internet habits are tracked as they enter information online. Typically, censoring governments log search engine entries and URL entries, and if the offending site is restricted the user either is denied access to the site or gets their internet connection shut down completely. So, for example, Googling "Tiananmen democracy movement" might either return very few results, or shut down your internet connection.

Picidae allows you to enter an URL via their servers, and returns an image map of the target URL, as opposed to an html page. The links remain clickable and simple forms can still be filled out (so you could search Google all day long).

It's a brilliant concept, a potentially revolutionary system. I can only hope that the inability to access picidae.net at this moment is due more to some kind of access overload than to something more insidious.

[Edit: The Picidae site appears to be up and running now.]

The Commoditization of Creativity

An interesting interview on Murketing, and the cheap art in limited editions it discusses, has me thinking (again) about the role of experts and commoditization of creativity. Our economy has embraced the "idea as artifact" so enthusiastically that we keep overlooking some really important things:

1. People who produce ideas (a.k.a. creatives) are being transformed into production lines. This results in commodity ideas that are less organic, less researched and more simplistic. The ideas are, in fact, often crappy or hogwash.
2. Access does not equal quality. Just because something is online, or available cheaply, doesn't mean it's worth owning or reading or believing.
3. Who owns all these ideas?

It's the last question that worries me. I'm no copyright expert but I am a writer. And as a writer, I consistently bump up against publications who want it all—all rights, that is—and don't want to pay for them.

As a designer, too, I see this. Clients don't know the difference between a useage license and copyright ownership. In other words, they don't differentiate between the finished product and the creative process used to produce it. Now that everyone can "create," there is no longer a distinction between the challenges of problem-solving/thinking/experimenting/innovating and a factory assembly line.

Of course, this argument begs the question: isn't a mass-produced artifact the fruit of someone's creative idea? Not really. It may have been when it was just a prototype, but once it becomes mass-produced, it becomes a commodity.