More and more, graphic designers are starting to realize they’ll enjoy more flexibility and even a bigger paycheck if they choose to work independently, but sometimes finding yourself in a work for hire situation can limit your rights to claim your copyright.
The number of creatives choosing to work for themselves is on the rise. Rather than being employed full-time by an ad agency or creative business, graphic designers decide to go freelance, perhaps incorporating their own endeavors and going it alone. While many find doing so gives them added negotiation power and freedom to pursue a variety of creative endeavors to outfit their graphic design portfolio, there are numerous ways that freelance graphic designers can give away a lot more than they bargained for.
While you may not necessarily be employed by someone full-time as a graphic designer, it is possible that you may find yourself in a work for hire situation, particularly if you do not closely read the contract governing your agreement or take a moment to think critically about the manner in which you’re working with a client. And if you do find yourself in a work for hire arrangement, you may be alarmed to find that your creative work product doesn’t, in fact, belong to you, but rather, to the client. Since that would significantly limit your ability to share and reproduce the work in your graphic design portfolio, a primary tool most freelance graphic designers utilize to generate more business, it’s important to know what you’re getting yourself into before you go into business with a new client – or run the risk of winding up in copyright small claims court.
Graphic Designers are Protected by Copyright Law, Too
While a graphic designer may not necessarily think of themselves as an artist, designers, like visual artists, are entitled to certain protections under copyright law as creators of artistic work. Copyright law protects an original work of authorship, fixed in a tangible medium, with a minimal degree of creativity. Since graphic, pictorial and sculptural works are all considered copyrightable, then graphic designers who create work will usually enjoy copyright protection of their individual works.
Since copyright law focuses on the expression of an idea, copyright law will protect a work from the moment it’s created. That means the invitation you created for a holiday party, the logo you rendered for a new company, or photograph you altered and re-designed for a personal exhibition would all be protected under copyright law, even if you don’t sign your name on the piece or register the work with the Copyright Office.
A work that’s protected by copyright enjoys certain benefits, such as the right to make copies of the work, perform or display the work, reproduce, or make derivatives of the work. Meaning that, if someone wants to use your work to make a flyer, they will need to ask your permission – and at your discretion, compensate you – first.
Whether your work will automatically be afforded copyright protection depends heavily on the context in which the work was created. Since graphic design is often a skill that’s utilized by companies looking to punch up their marketing initiatives, it’s often the case that you’ll be carrying out the work within the scope of employment or an agreement for services. As such, whether or not your copyright is protected will depend largely on the type of agreement you have with a boss or client.
What is a Work for Hire Agreement?
Most creatives don’t necessarily know that copyright protection isn’t automatically afforded to you when created in the course of employment. In fact, copyright law has carved out exceptions for business owners to be able to retain the rights over work created by employees in the course of their employment. Under the current law surrounding work for hire agreements, any creative, copyrightable work created by an employee at work will grant the business the copyright in the work.
On the flipside, an independent contractor (i.e. a freelance graphic designer) hired to do one particular job or perform a specific service – even if that contract is long-term or involves multiple deliverables – will usually retain the copyright in the work.
However, what makes someone an employee – even if they’re working full-time and using all the company equipment – isn’t always so cut and dry.
In order to determine whether you retain the copyright in your own work, a court will consider a variety of questions and make a decision based on the totality of your circumstances. Are you employed for a set number of hours? Do you use the company equipment? Do you do the work from home or the client’s office? Do you have autonomy or rely heavily on someone else’s direction? In other words, just because you don’t consider yourself to be an employee of an organization doesn’t necessarily mean that a copyright small claims court wouldn’t find that you are – which would mean you would lose all possibility to retain your copyright in the work.
Conversely, a freelance graphic designer that uses his or her own tools, decides when the project will be scheduled, and bills the client directly would likely be considered an independent contractor and generally speaking, can retain the copyright in their work. However, there is a means by which a client can retain the copyright in that work, which is why paying attention to your contract is so important for a freelance graphic designer.
Read the Fine Print: Work for Hire Might Govern Your Contract
Under specific circumstances, a client may retain the copyright over the work he hired a freelance graphic designer to create. A client can do so in situations if there is a work for hire agreement, which exists when:
- A written agreement signed by both parties;
- that specifically states that the work is a “work-made-for-hire;”
- and, the work must be one of these nine types:
a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, material for a test, or an atlas.
Graphic designers’ works will generally fall under “compilation,” since graphic designers usually create multiple versions of the same work. As such, if you don’t read the contract, you might find yourself in a situation in which you signed away all the rights to your work.
What does that mean for you, graphic designer? If you are a graphic designer and full-time employee of any one particular company, then it’s likely that you do not own the copyright in your own work, and therefore do not have the right to reproduce, display in your graphic design portfolio, make copies of or make derivatives of that work. However, if you’re an independent contractor, then it’s completely possible to retain all of the rights in your creative work – so long as you properly negotiate the terms of your agreement.
Often times, freelancers are so eager to land a new contract or client that they overlook those provisions or decide they’re simply not worth the fight. However, it’s important to understand the consequences of doing so. For example, many freelancers who are often looking to continue getting new business might want to display their work on their websites or graphic design portfolios. If you don’t own the copyright in that work, you’ll need express permission from the client to do so. In addition, many freelancers often want to sell a version of a similar work to a new client – again, if you don’t own the copyright in the work, the original client may accuse you of making a derivative of his copyright, and hold you liable for damages in copyright small claims court.
Freelance graphic designers who wish to retain copyright over their work, then, should be wary of work for hire provisions before signing up for a new gig.
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Hi Nicole, Great article. All designers look to prior works for inspiration. The crucial inquiry, however, is whether the source of the inspiration has been transformed sufficiently that the new design can be considered “original” rather than “derived.” In making this determination, you compare the designs side-by-side or you overlay one design on the other. Then, you decide whether the protectable elements of the two designs are “substantially similar.”