When designers were young
This is a very interesting topic and one that needs a detailed explanation to help those who are fairly new in the creative industry and others with less information around publishing rights and copyright.
Let me enunciate that your position in a contract as the creative is dependent on where you place yourself. In Africa, money comes first and everything else is lost, whilst in the first world countries, contracts and rights come before the money.
Whilst I was on a business trip to Nigeria to help a client with branding, they were very shocked when I touched on the copyrights of the designs I would be providing. I mentioned that creative rights belong to me and can be showcased and used as evidence of my works as I deemed fit but the idea of work remains that of the client. I also mentioned that any editing to the original work would be done collectively and with my knowledge. The client spoke about how much he was going to offer and that there are several young professionals who would receive lesser and part away with their rights.
That’s where the problem lies, most clients at the enterprise level are already more aware of your rights than you do and they would do anything to manipulate or faze you away from agreements that can benefit you for life.
Some designers design for royalties, others work on a retainer to manage the brands they create, whilst the rest work on a pay as you need basis. Most of the rest I mentioned are in Africa.
Know where you stand
I would like to mention, that most graphic designers are not sure of the service they offer, hence it becomes hard to make a stand or build around their creativity. Some creatives trade purely in the creative marketplace, where they make templates and earn for a lifetime off the designs. While others wait for a client to request their creative skills to create a design or idea they want. These two designers are operating in two separate legal areas and need to be sure if they are a service provider or a creative, as these terms are misplaced these days.
I must mention though that some Graphic designers today have hybrid practices. You may teach, write, or initiate designs and exhibitions around themes that concern you. Still, for most designers, working with clients is a very significant part of the job. This makes the situation different to those artists who first make something and then have to sell it: you are, at least in part, a service provider.
When someone pays you to make a design, that’s what they’re paying for, the service of making the design. Paying for your services does not automatically grant your clients copyright. The copyright remains yours. This might seem counterintuitive but, theoretically, the client will have to ask your permission to reproduce the design!
Basically, when commissioned, you are considered to permit at least the reproductions that are the logical consequence of this commission. For example, if you’re asked to design a poster announcing a theater show, you accept the poster is going to be printed and distributed around the city in the weeks before the show. However, if the theater then wants to reuse the poster on the cover of next year’s program, they theoretically need your permission. If the theater asks their in-house designer to create a new poster for another piece, based on yours, they also need to ask permission.
This is, of course, a hassle for clients. Legally-savvy ones will want to negotiate that copyright of the work is assigned to them in the contract. Depending on how strong your negotiating position is, you’ll be able to bill them extra for this.
In my 13 years of being in the brands’ management arena, I have seen so many Africans miss out on the opportunities of a lifetime, purely because they do not understand the value of their creativity. The experience and level in the industries are factors but understanding the basics of trading copyrights in a creative industry is key.
In first world countries, graphic designers often bill the design labor separately from the copyright assignment, because copyright royalties are taxed more favourably than other income. You can either sign the copyright over in full or you can write out a non-exclusive license, allowing you to continue to use the work yourself.
With smaller clients who have smaller budgets, you can opt to keep your copyright, explaining to them that you would prefer to be involved as a designer on subsequent iterations. There is also a small but growing group of designers who publish their client work under open licenses, allowing not just themselves and their client, but also other designers to reuse their work. Whatever you do, discuss the arrangement with the client at the start of your relationship. You won’t make any friends if you barge in with legal threats years later!
Biggest Blunder to copyrights
For visibility, many designers rely on design blogs and related social media platforms to feature their work. These platforms are sometimes used by young designers as a publishing platform to seek recognition and these same platform becomes the stage for plagiarism and design theft.
One possible scenario when copyright does come into play is in the case of clear-cut plagiarism. That is when a designer incorporates your work into their portfolio as their own. In this case, copyright infringement should be much easier to prove.
These platforms sometimes operate in complete disregard of copyright. Usually, designers first put their portfolio online and blogs pick up on the work, write a short review, and post the images. Theoretically, this is not how copyright works. These blogs are supposed to ask your permission first.
What you can do is verify that the images are properly attributed and link back to your website. If that’s not the case, you can use copyright’s leverage and reach out to the publication and tell them you don’t mind them displaying the image as long as the attribution is in place.
Some extracts in the article are from aiga eye on design