Frequently asked questions about graphic design and copyright in Canada.
Who owns copyright?
The creator/designer owns the copyright in work he creates on a freelance basis. If employed by an organization or government, then the employer or government owns the copyright. As well, commissioned photographs, engravings and portraits belong to the person commissioning these works. All of these situations can be reversed by a contract.
Practical Point: Where a design studio pays a freelancer to develop a logo or illustration for one of the studio’s clients, the freelancer owns the copyright. However, there may be “implied” permission from the freelancer for the studio and his client to use the logo in certain circumstances that are “somewhat obvious” from the nature of the work and the particular situation.
Note that ideas are not protected by copyright, merely the expression of those ideas, for example, in text or through graphics. As such, you may want specifically to mention in your agreements (see next question) who owns the ideas you submit to a design company, and what uses can be made of them, including a reference to the situation where you are not hired to complete the work based on your proposal or are fired after you have begun to create the designs.
What constitutes a valid contract?
A contract is where one person offers to do something and the other person accepts that offer and there is an exchange of money or some other form of consideration for that work; you can have a contract for the purchase and sale of a product or copyright protected work. The contract can be in many forms, oral, written as a letter, or as a more formal document, and possibly through email. Written contracts are best as they provide concrete proof as to what was agreed upon as opposed to an oral agreement where two people may recall the conversation differently. In addition, where there is an assignment of copyright (a sale of the rights) as opposed to a mere licence (more like a rental or permission to use a work), the copyright law states that the assignment must be in writing. The more specific the contents of any agreement, the more helpful it will be in case of any dispute.
Practical Point: Specify who owns the elements of a project. For instance, you might want to specify that you own the electronic versions and that your client owns the original photographs and illustrations. You can agree to whatever works best for you in the circumstances.
Rights vis-a-vis Non-Payment
Usually, a contract is only valid where the parties to it honour their obligations under it. For instance, if a design studio does not pay the designer, the designer does not then have to complete the work. Also, if the contract is that the copyright is granted to the design studio upon payment of a certain amount, and the studio does not pay the designer, then the designer retains the copyright in the design whether it is on computer disk or another medium. In fact, it is a good idea for any contract clearly to state this point.
Practical Point: Generally, immediately upon non-compliance of one party to the agreement, the other party may enforce his rights. For instance, if you are to be paid for your work on January 15, 2014 and you are not in fact paid, you may take any necessary actions to notify the other party that the agreement is no longer valid and that you continue to own the copyright in your designs. On the other hand, you may wish to proceed on a more friendly basis and make alternative arrangements with that other party.
Prepared by Lesley Ellen Harris, Copyright & New Media Lawyer, September 1997. For further information, see copyrightlaws.com. This fact sheet sets out some important considerations and should not be taken as legal advice. Obtain proper legal advice where necessary.