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
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
– 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.
– The Digital Millennium Copyright Act (DMCA) became effective also
including the digital network environment as well as print, film and
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.
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 ® 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 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.
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.
Rates vary by several deciding factors:
Mass market – major retailer w/ increased potential volume of sales
vs. speciality market – boutique stores w/ potential lesser volume of
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
2.) Type of medium/product:
Where will the finished design work appear? Print (Magazine,
Newspaper Publications), Digital (Web, Email, Social Media) Outdoor
(Signs/Signage, Billboards) or Multiple Forms of Media? How many mediums
within each market category will the artwork appear? (for example, 1
magazine or 10? 1 billboard or 50?, etc… )
3.) Geographic area of use:
How widely will the work be used: local, regional, national,
international? As the span of the marketplace increases, so does the
work’s exposure, which can increase its present and future value.
4.) Duration of use:
How long will the design work be used – for one time, one year, two
years? Limitations on duration of use allow designers to control the
exposure of their work and to receive fair market value in each venue
where their work appears.
Ownership of original art:
Giving the client the right to artwork or to a design for a
specified use or a particular period of time is different from selling
the client the physical artwork and submitting all electronic files. The
sale of original art is considered a secondary market for graphic
designers and is, by law, a transaction separate from the transfer or
sale of the reproduction rights OR the original creative fee to
initially design the artwork.
All-Inclusive rights “terms:”
Such licensing rights allows the client a one time run or use of the
artwork, an unlimited use of the artwork, unlimited use of the
reproduction of artwork, including geographic areas, all different types
of media but for a limited period of time (usually 1 year), etc.. The
rights pertaining to the licensing fee would be agreed by both parties
in a legally binding licensing contract.
*the artist also has the
right to require limitations on duration of use and separate different
designs into different licenses allowing the designer more control to
the exposure of their work and to receive fair market value in each
venue where their work appears.
For example, the artist can
“bundle” all-inclusive rights to client for all artwork EXCEPT for use
of ads in publications (magazines and/or newspapers) and would limit the
number of “runs” to 5 per year instead of an unlimited amount. Any more
“runs” with the artist’s ad/ad campaign would require an additional
Finally, there is an all-rights clause, also called a “buyout,” granting the client full permission for all copyrights of all original artwork including all original electronic files that the artist creates for that client. This type of transaction is always the most substantial and highest price point upon negotiation for the artist and client. The value for all original artwork is very difficult to gauge for fair market pricing since a buyout price is determined for the artwork for both present AND future value of the company. The all-rights buyout clause would be valid for the life of the client’s company and would be settled by a legally binding buyout contract.