Intellectual Property Rights for Designers
As creators of visual material, designers and design companies have many potential intellectual property rights including:
- Database Rights
- Moral Rights
- Resale Royalties (for artworks)
- Rights over confidential information
- Trade Mark Rights
To ensure that your intellectual property rights are fully protected and exploited and that you don’t breach the rights of others, you should be generally aware of the above aspects of intellectual property law.
Among the key intellectual property issues for design companies are;
Q: Do I need to register my copyright?
A. No, copyright is an automatic right. Registration is not needed for copyright ownership in the UK. However, in any dispute you will need to prove when you created your work.
Practical Steps: Always ensure that your work is properly dated and that there is independent evidence confirming when it was made, for example, digital photographs of your work with the date on or some people like to put a copy of their work in a sealed envelope posted to their home address. Also, always ensure that your work is properly credited with you as the author and the copyright owner. This is a useful warning to deter others from exploiting your work.
Q: I have been commissioned to create a work – who owns the copyright?
A. The general rule is that the copyright remains with the artist (even if the work has been sold) as the owner of copyright is the artist.
This is the case unless:
(i) the artist expressly agreed that the commissioner would own the copyright or
(ii) it can be implied from the circumstances that it was equitable for the commissioner to own the copyright (e.g. the work was created for a specific, commercial purpose).
Practical Steps: Always ensure you have a written agreement with the commissioner, stating that you (the artist) retain copyright. The agreement should set out a licence for the commissioner to use your copyright in circumstances specified by you (e.g., price, range of uses). A clear, written licence can ensure that the commissioner is unable to exploit your work where you would not intend.
Q: I have been asked to transfer my copyright in a contract commissioning me to produce a work – what should I do?
A. Copyright is a potentially valuable property right that can be both fully transferred and licensed. It lasts your full lifetime plus 70 years. Be cautious about giving this right away, unless you feel sure that you will be properly compensated.
Practical Steps: It is advisable to grant licences to the client. Licences can be limited both in terms of geography, scope and time. Though it is often difficult in practice to negotiate a favourable licence when you are in a weak bargaining position, try and stand firm on your rights.
Q: I collaborated on a creative project, who owns the copyright?
A: You may be joint-authors of the work and therefore joint-owners of any copyright.
Whether you are joint authors will depend on:
(i) whether there is a contribution by both of you to the art work (it does not have to be equal)
(ii) whether there is collaboration (this does not depend upon intention but upon a shared design)
(iii) whether your contributions are inseparable (i.e. it is not possible to say that part of the work belongs to you and part belongs to the other artist)
Practical Steps: If you wish to avoid sharing copyright as a joint-author, ensure that you have a written agreement declaring you to be sole author and transferring any joint-copyright exclusively to you.