A Perspective On Intellectual Property In Design
by Jaye Donaldson
June 2002
Article published in
Design Management Institute online "eBulletin."
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 and 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 The Donaldson Group and the Chairman of the Association of Professional Design Firms.
