Copyright is a concept that's often referred to but rarely well understood. From the lowliest student to the biggest design agency, we're all protected by it - and we all risk infringing it. Here, we'll look at the implications of copyright for 2D design. Photographers and writers should be aware there are further copyright and other issues in their fields, while product and packaging designers must consider design rights and patents laws.
Copyright exists in original literary, dramatic, musical and artistic works, published editions of such works, sound recordings, films and broadcasts. 'Original' just means something is the result of independent creative effort - it may be quite similar to things that already exist, it may lack any artistic or intellectual merit and it may even have been created quite mechanically, as with a database compiled from other databases.
There's no requirement in the UK to register works or to mark them with a copyright symbol or date of first publication. Doing so can help clarify your rights later, however, and may be essential to activate protection in countries outside Western Europe, the US and Russia. Work originated in most foreign countries is automatically protected in the UK. Copyright lasts until 70 years after the death of the author or artist (with shorter periods for recordings, films and the design of published editions).
Not all kinds of design work are protected. The largest exception is the design of objects, which isn't covered by copyright but by 'design right'. The details are beyond the scope of this article, but more information is available from www.patent.gov.uk/design/index.htm, while a useful (though quite technical) article on the latest legislation is at www.designchambers.com/Article1.htm. Design right mainly addresses the decorative aspects of an object, while its functionality can be protected by patents. Drawings and photos of objects are still covered by copyright, as is (or may be) any two-dimensional artwork applied to them.
Copyright only protects the work itself, not the ideas behind it. This can be a fine line, but it means your brilliant dotcom concept, for example, can be imitated by someone else as long as they don't copy your actual site design. If your Web site was online first, you might still be able to take action for 'passing off', the common-law tort of making your own work look like someone else's to take advantage of goodwill that rightfully belongs to them. Similarly, names and slogans aren't usually covered by copyright, but can sometimes be registered as trademarks. This protection isn't automatic, and it's no good writing 'TM' after a phrase unless you've registered it. See www.intellectual-property.gov.uk/std/resources/trade_marks/ for details.
Finally, the medium in which works are stored or reproduced generally has no implication for copyright. Copying something from the Internet isn't any different to copying it from paper.
Owning copyright
It will be clear from the above that most work by 2D designers automatically attracts copyright. But it may not be the designer who owns it. Copyright in anything you create in the course of employment normally belongs to your employer. When you're commissioned by someone who isn't your employer, the first right to the work remains with you, while the client gains a limited licence to reproduce it. The exact terms of this licence are up to you and the client to agree (see Using copyrighted material, below).
Designers' contracts of employment should lay down precise terms of copyright ownership of work they create. However, they often don't, so many designers who hold down a job while taking on freelance work leave themselves open to action for copyright infringement by their own employers.
Many will feel that moonlighting is accepted within the industry, but intellectual property specialist Tim Ludbrook, a barrister at 7 New Square, warns against such assumptions. 'What constitutes "course of employment" is a tricky area in itself. There's a lot of difficulty about doing the same thing with different hats on. Most judges would feel the onus was on the employee to ensure there was no infringement.'
It's certainly not as simple as ensuring you only do freelance work in your own time. More important is avoiding any similarities between work done for outside clients and work done for your employer.
There's also a 'duty of fidelity' to your employer, which rules out working for clients who could be seen as rivals. Add the fact that many designers use their employer's premises and equipment for freelance work and any court hearing could start off with a significant bias towards the employer. You may think you're not at risk because you have an understanding with your boss, but if things ever turned sour, you could find yourself not only out of a job but with a lawsuit hanging over your head.
The best way to protect yourself is to ensure everything is out in the open. If your contract doesn't specify what you can and can't do, discuss the issue with your boss, keep a record of the discussion and try to exchange memos on the subject. If your employer has been made aware of your presumption that you own the copyright to any work not specifically undertaken as part of your job, and hasn't contradicted this, you'll be in a stronger position.
Where you do own the copyright in any of your work, you also have certain 'moral rights' as its author. This relatively new aspect of copyright attempts to protect your right to be acknowledged as author of your work and to prevent it from being unreasonably 'distorted or mutilated'. In practice, it hasn't had much impact on designers.
Your moral rights only come in to force if they're 'asserted'. This is why you find statements at the beginning of recently published books to the effect that 'so-and-so has asserted his/her right to be identified as the author'. That's great for novelists, but the law specifically excludes newspapers and magazines, so in these media your work can be dragged through a hedge backwards and credited to Rumpelstiltskin without any comeback. Second, regardless of medium, you can choose to waive your moral rights - and most clients will demand you do so.
If you're a publisher or art director, of course, you'll be glad you're not going to end up in court because you had to fiddle with an illustration or accidentally omitted a credit. Be sure you're subject to an exclusion or waiver, however, or that's exactly what could happen.
Using copyright material
Which brings us to the issue of using other people's copyright work. If you're doing this overtly and in collaboration with the copyright owner, you should agree terms between the two of you. When you commission an illustrator to produce original artwork for publication in a magazine or newspaper, you would expect to get the right to use that work on a single occasion (for example, on a particular page of a magazine) and to be the first to publish it.
In most cases, you'll also want to have exclusive use for a certain time, such as the shelf life of a periodical, which should be specified - some clients have a standard contract requiring an exclusive period of three or six months. If you want any rights beyond this, you should expect to pay extra for them.
After a period of exclusivity, the designer will be free to sell the work elsewhere (this rarely happens, though), or to reuse elements of it. If you don't want the same illustration to be used by rival companies, for example, you'll need to negotiate this restriction. If you want to reuse the illustration on a future occasion, you should expect to pay a fraction of the original cost for each use.
Publishers commissioning work for regular reuse, such as templates for a magazine, need to ensure they have the appropriate rights. At the far end of the scale, advertising clients will typically want to buy all rights and this is one reason why designers expect better rates from them.
Things get more complicated when it comes to copying existing work. Whether you want to reproduce a painting as a magazine cover, reuse an illustration published elsewhere, or incorporate an animé character into a montage, you can't legally do it without the permission of the copyright owner.
There are exceptions to copyright protection, but far fewer than you may expect. The law says you can reproduce limited portions of work for private study, for criticism or review, in reporting current events (excluding the use of photographs) and in the course of teaching. Even within these narrow limits, you're further bound by the rule of 'fair dealing', which is typically judged on the basis of economic impact on the copyright owner.
There's no rule that an image posted on the Internet loses copyright protection. There's no rule that material published without a copyright notice can be copied. There's no rule that a bad scan of a piece of artwork has any less protection than the original.
This leaves only one situation where you can copy existing material without permission and that's when it's out of copyright by virtue of the original artist having been dead for 70 years. Unless you're copying directly from the original work, you're still not home free. A painting may have been completed 700 years ago, but that doesn't mean you can copy a photo of it: you're infringing the photographer's copyright. Even a scan, in so far as it took skill and labour, attracts copyright protection.
You must also bear in mind that the 'copy' in copyright refers to any copying, not just large-scale duplication. So if you copy an image from the Internet to your hard disk with a view to using it in an illustration, you've already infringed copyright; it doesn't only happen when your final illustration appears in 50,000 copies of What Lawyer? magazine.
If this all seems to imply that every designer must infringe copyright at least once a day in order to do their job, well, that's probably true. So what consequences await us wanton lawbreakers?
Copyright infringement
Although copyright infringement can be a criminal offence, it's usually only pursued by the police and the Crown Prosecution Service in cases of commercial and usually large-scale counterfeiting. The more likely result of everyday infringement is civil action by the copyright owner.
You might think that, since legal action is expensive and copyright infringement commonplace, copyright owners are unlikely to bother suing you. Does it really happen? 'Yes,' says Ludbrook. All the time? 'Yes.' Even over, say, a single use of an image? 'Yes.' Oh dear. 'It depends on how litigious the copyright holder is, but if you're relying on them not finding out, or on having changed the original material "enough", you may be in trouble.'
Fairly obviously, bigger players are more likely to sue, but this generalisation can't be relied on. 'Some small copyright owners don't take a commercial view about litigation,' warns Richard Hodgson, a barrister with intellectual property specialist Design Chambers. 'Cases can become very personal and they will sue even if advised their chances are 50:50, tops.' Nor will they necessarily be put off by the cost. 'Copyright owners may have litigation insurance or no-win, no-fee arrangements with their lawyers,' he says.
When it comes to mounting a defence, things can quickly get expensive - and complicated. Even though you are the designer of the work, the action will most likely be against your client, as the publisher of the infringing work and the party with the deepest pockets. 'The client would then seek to "join" the designer,' explains Hodgson. You may assume it's your client's responsibility to ensure it doesn't publish infringing work, but the onus is on you. 'If the client had no creative input, and the contract between designer and client was silent on the subject of indemnity, I would expect the client to require the designer to indemnify it,' he says.
This leaves you, the designer, with the bill for a defence but little control over it. 'The client may well put its hands up immediately and offer to pay costs and some damages,' says Hodgson (and, remember, these are coming out of your own pocket). 'Or it might fight the matter all the way to a full hearing in the High Court.' If the client loses - and, of course, if you have indeed infringed copyright, the chances are it will - you could end up paying your own costs, your client's costs, and about 70 per cent of the winner's costs, on top of any damages awarded. 'The total could vary from a few hundred pounds to a few hundred thousand pounds. Few will escape with a bill of less than a few thousand,' estimates Hodgson. Many cases are settled before they reach the courts, but the amounts involved can still be large.
Professional indemnity insurance covering copyright infringement may be available, but the premiums are likely to be too expensive for freelances. The only way to protect yourself, Hodgson concludes, is to be extremely cautious. 'Take extra care and seek advice and/or clearance for anything that raises even a nagging doubt.' You may be able to stay on the right side of the law and still use the material you want. 'Some copyright owners are surprisingly willing to grant clearance for little or no fee if full attribution is given,' he says.
Beware, though, of getting clearance from someone who doesn't actually hold the copyright. Frank from Belgium may have no problem with you reproducing a screen grab of the SuperMegaMan arcade machine from his Web site, but that won't help when you get a letter from the game manufacturer's lawyers. Even if you're dealing with the original artist, he or she may not own all the relevant rights. The person or company giving permission should confirm in writing that it has the right to license your usage and indemnifies you against any action for copyright infringement.
Play it safe
As you'll gather from all the above, it is fair to say that the law is generally on the originator's side. This is of the essence of copyright, which is a negative right: rather than guaranteeing anyone's freedom to act in a particular way, it provides for people to prohibit certain actions on the part of others.
You may well feel that, as a matter of natural justice and common sense, you must be free to borrow from other people's work to a certain degree, and you may well be right; but the onus is on you to prove that, by doing so in a particular instance, you're not breaking the law.
Ask any experienced designer the best way to learn the trade and they'll tell you: 'Copy.' It's by building on what's been done before that new talent is developed and progress made. How can this be reconciled with the draconian provisions of copyright law? Fortunately, there isn't yet a security camera peering over the shoulder of every designer and many practices which technically constitute infringement are likely to go undetected. A good understanding of copyright law is vital, but the basic principle of everyday compliance is straightforward: don't take the piss.
This means asking yourself whether you're really ripping off somebody else's work, or just drawing inspiration from it to create something that's different, original and genuinely yours. Strictly speaking, inspiration should happen only in your mind and not on a template layer in Illustrator. Ludbrooke concedes that if the end result is unrecognisable, 'the infringement is unlikely to come to light'. What he stresses, however, is that you must consider what would happen if it did come to light. If in doubt, leave it out - or get permission.
Author: Adam Banks
Legal aid