| A Perspective On Intellectual Property in Design
By Jaye Donaldson
June 2002
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| Jaye Donaldson |
When designers and clients get together the question often arises,
“Who owns the rights to this stuff?” The answer, depending
on the source, the information and the perceived value of creative
work, can spark debate and contention. It can even ruin good relationships.
Understanding the nature of “intellectual property,” and
the parameters of ownership, can protect both the designer and the
client.
United States copyright law is founded on a Constitutional provision
intended to “promote the progress of Science and Useful Arts.”
It provides a helpful balance between the rights of authors, publishers
and copyright owners, and “fair use,” or the free exchange
of ideas.
Simply put, a copyright provides for five separate, compensable
rights to: reproduce the work, make derivative works, display the
work, distribute the work, and (if applicable) perform it. Only
the owners of the copyright and their authorized agents have these
rights.
As a general a rule, when a design firm creates work on behalf
of a client, unless otherwise stipulated, it owns the work it creates
(and its five compensable rights). In providing creative work to
the client, without an agreement in place, the firm is assumed to
have licensed rights for that part or use of the work for which
the client will pay. Transferable rights to another medium, the
right to extract artwork and language for other purposes, the ownership
of digital files – by law, these all rest with the author.
This is often a surprise and a disappointment to the client, who
often assumes the product to be “work for hire,” and therefore
owned by the client. A frequent response (particularly favored by
large organizations with a sophisticated legal staff) is to exercise
the concept of contractual obligation, developing contracts that
essentially require designers to give up ownership rights as the
price for doing business. Design firms always have the option of
refusal, of course, but only at the price of sacrificing work. Quite
simply, clients using this approach simply go elsewhere to firms
without such a strong ethical stance.
Ironically, photographers and illustrators have established principles
that govern their intellectual property in a way that seems to satisfy
both the author and the client. Why design firms and their clients
are not able to find this happy medium is frustrating and puzzling.
The Association of Professional Design Firms (APDF) has recently
formed two Terms & Conditions subcommittees to make recommendations
about the nature of intellectual property in design; the first to
support the unique needs of industrial design and product development,
the other for graphic design firms. We are asking the questions:
Can there be an equitable business model that satisfies both the
client and the designer? And can rights be assigned that ease bureaucratic
and economic headaches for large companies, yet keep small companies
from giving away the farm?
The Design Management Institute offers a wonderful forum for both
designers and clients in our industry as we collectively consider
this issue. The APDF is appreciative of this interest and warmly
encourages the mutual continuation of this dialogue.
Jaye Donaldson is the President of
Donaldson Makoski and the Chairman of the Association
of Professional Design Firms
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