Copyright 101: Understanding Copyright Law and How to License Your Artwork As a Designer

By Emanuel Saba

Copyright/Licensing Info:

U.S. Constitution, Article 1, Section 8 empowers Congress to "promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." - the basis of copyright laws of today

In today's visual world, the work created by a graphic designer are among the most powerful vehicles for communicating ideas in our society and generating revenue for a particular client. A successful logo, ad campaign, commercial or overall branding of a company, can evoke a company's goodwill in the public mind and move an entire population to action.

© Copyright: an artist's right to control the use of their original creative art (which also provides the basis for pricing, licensing and fair trade practices).

1978 - Copyright Act became effective.

1989 - U.S. copyright law automatically protects original artwork from the moment of its creation even without inscribing a copyright notice which always allows the artist to assert a claim for copyright infringement even if he or she has not previously registered the work in question.

1998 - The Digital Millennium Copyright Act (DMCA) became effective also including the digital network environment as well as print, film and recording media.

Copyright term: Artist's life + 70 years

Trademarks: TM or ™

While a copyright protects an artistic or literary work and a patent protects an invention, a trademark protects its name or identity.

A valid trademark gives the owner the right to prevent others from using a mark that might be confusingly similar to the owner's mark especially if someone else uses the mark for similar goods or services thus respecting the owner's intellectual property.

The (TM) symbol, however, may ONLY be used AFTER the U.S. Government grants a federal registration certificate. (Nike, Mercedes, etc... ). Being registered through the federal government entitles you to more rights in case of infringement throughout the United States, even in geographical areas in which the trademark is not used.

Licensing Rights:

Licensing copyright rights to a client for use and reuse or reproduction of a design, ad campaign, logo, etc... for a particular purpose, for a particular length of time, or for a particular geographic area for a fee is an issue of basic fairness and standard business practice in the industry.

An artist's copyright is actually a bundle of individual rights. Each specific use can be transferred outright or licensed separately for a specific length of time. Fees are determined primarily by the value agreed upon between the licensor (artist) and licensee (client). Any rights not transferred explicitly in writing remain the property of the creator.

• In the design/advertising industry, the value of a particular work of art or design is influenced greatly by its use.

Artists can license their work on either a flat licensing fee or on a royalty fee for a specified period of time as agreed by both the licensor (artist) and licensee (client).

It is very important to be specific as each type of design and level of usage influence the final value of the artwork AND scope of the amount of design work to be completed. This information will ultimately assist in finalizing the price structure for the designer and creative budget for the client.

Setting Rates:

Rates vary by several deciding factors:

1. Distribution:

Mass market - major retailer with increased potential volume of sales vs. speciality market - boutique stores with potential lesser volume of sales.

Pertaining to start up companies: find out how many and which pieces of product, apparel, accessories, promotional materials/merchandise the client plans to produce for its initial and subsequent manufacturing runs.

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