Erich Fruchtnicht
Let me start off by saying that I am not a lawyer nor do I play one on TV. Please consult real legal counsel when dealing with the complex issues surrounding intellectual property and its ownership. This article is meant to be a very general overview and to highlight a few issues of which most people are unaware.
Here is the scenario: you have opened your business and bought a logo, a website, business cards, and signs. You have paid for advertising campaigns that have used your existing artwork and required the development of new artwork to help “sell” your product or service. Do you own the artwork for which you have paid? If so, are there limitations on your ownership?
Intellectual property (IP) ownership can be very complicated which surprises most people due to the simplicity of the IP itself. “Surely,” you say to yourself, “a small logo that I paid $50 for is mine to do with as I please. After all… I paid for it.” Often, this is only partly true.
In the same way that one can buy a house but not own the blueprint, one can purchase a graphic but not own the original artwork. When a graphic is purchased as a jpeg, for instance, the purchaser receives the jpeg in exchange for payment to the artist. The artist does not send the files he or she used in Photoshop or Illustrator to create the graphic unless that transfer is specifically mentioned in the artwork creation contract. Those “construction” or original artwork files remain the property of the artist.
An example of how this can be confusing is as follows: a business owner hires a graphics designer to create a brochure for his or her business. The designer provides the completed design file to the business owner as a PDF for printing and the business owner gets the brochures made at a local print shop. Unless there is specific mention of the original artwork being included in what is known as a “work for hire” agreement, the business owner can only claim ownership of the unaltered PDF as provided by the graphics designer and the paper brochures that were printed.
Work-for-hire agreements are not uncommon, but are they necessary for you? Graphics designers will often charge a higher rate when working under a work-for-hire agreement because they must relinquish ownership of all their original work to the purchaser. Once relinquished, the designer risks losing future earnings on their artwork since they are not the guaranteed service provider for any future revisions to the same art. If the purchaser wants to change the text on a brochure that was created as “work-for-hire,” they do not have to use the same designer and can take the file to someone else to edit or make the changes themselves if they have the right tools.
A work-for-hire agreement can be useful for someone whose product or service is proprietary as the business owner can be much more protective of their designs. However, for most small businesses such an agreement may not be necessary. Always consult a lawyer who has experience in IP before making decisions regarding work-for-hire agreements.
A good graphics designer (whom you have chosen carefully based on my previous recommendations, right?) will not want to reuse anything recognizable from your artwork because it would make them appear to be using templates for their art and thus reduce their credibility, but that is a risk you take in the absence of a work-for-hire.
The final thought I’ll leave you with is this: if you have purchased artwork and there was no specific mention of with whom the final ownership of the original art would remain, it defaults to the artist. Hopefully, this was food for thought and prompted you to consider how your branding artwork is managed. Until next time!
If you have any questions about this or another topic feel free to contact me.
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Erich H Fruchtnicht is the President / Principle Designer of TGDesign, LLC
For more info: www.trinitygroupdesign.com or email him at [email protected]
