Who owns the copyright in the work we produce for a ... - Aspect Legal

Who owns the copyright in the work we produce for a client?

As a designer if you are commissioned to create a work for your client, who owns the copyright in the underlying artwork?? This can become a fundamental issue for designers, and is often misunderstood by clients.? If problems arise it is usually because the issue hasn?t been clearly dealt with in your terms and conditions with your client.? It is imperative, at the very least, to have a written contract that covers the issue of the ownership of copyright.

What is copyright?

Here are some basic and fundamental features about copyright:

• Copyright is a type of intellectual property that covers certain original creative works
• Copyright is a bundle of exclusive economic rights such as the right to reproduce the material, perform the material, show or communicate the work to the public etc
• Copyright is automatic, it doesn?t have to be registered, published, or display a copyright notice on it.? Copyright exists as soon as the work is first put in material form.

The general rule about copyright ownership

The general rule in copyright is that the creator of the work is the first owner of the copyright.? But there are exceptions to this, and it can easily get a bit grey.? If you have not specifically dealt with the issue of copyright ownership in a document with your clients, a court may take the view that due to things done or said along the way, you have assigned the underlying rights to the client. Even if you didn?t mean to!

The problem

The problem is that clients often believe that because they are paying for the work that is being created that they ?own? the work and all of the underlying copyright that goes with it.? The result may well be that your client has far greater rights over your work than you intended.

You may for example be prevented from using the work in your portfolio.

You may even be prevented from using elements of the work in work for future clients.

Your client may decide to take your work and replicate it across other business ventures, or sell it online as a template!

The courts are full of examples of disputes that have occurred due to differing views on who owns the ?copyright? out of work conducted, and what rights the other party has to the use of that work. For example in the case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 an architectural firm was contracted to design plans for a property development. A dispute ensued as to who owned the copyright and what each party was entitled to do with the plans. The High Court finally ruled on what rights each party held, but only after the case had already been through both a trial judge AND a Federal Court judge who both decided the case differently. It goes without saying that this would have been a very expensive and time consuming process for everyone involved, and unfortunately with an outcome that was almost impossible to predict for either parties at the beginning of the process.

So what?s the lesson to be learned from all this?

Agreement. Agreement. Agreement.

You need a written agreement, if you don?t want to leave the question of who owns what in the hands of a court that you can?t necessarily predict. ?Your agreement should cover these issues off in writing so if there is an argument, you have an answer in the document ? rather than leaving the outcome up to chance. The point of a clear agreement with your clients is to protect you and your rights, as well as inform your client so that problems don?t arise.

For example, you may have agreed to allow a client to use an image for a business card.? You should ensure that your client doesn?t get the right to use the work in ways you may not have intended, like selling it as a template to others. You might also want to be clear that any rights your client has to the use of the work doesn?t kick in until they have at least paid you!

A carefully drafted agreement should cover all of these sorts of possibilities, and a lot more.

Give us a call if you want to discuss any of this at all, or if you need us to look over your standard terms and conditions.

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