the next presentation is about copyright
which is actually one of my favorite
topics I don't know how passionate you
guys are about it but I hope that you
get excited about it in our session
today there is this persistent urban
legend out there that says that graphic
design is not protected by copyright and
of course that's not true there is a
legal category of protection that's
called a compilation so that's what
we'll be talking about and graphic
design and web design often sits into
that category usually fits into that
category so we're going to take a few
minutes today to explain what a
compilation is we're going to show you a
range of examples and then we're going
to talk about the process for
registering one I don't know how many of
you ever have ever been to copyright gov
but we'll talk about it a little bit so
I'm going to be presenting this
information with a frequent collaborator
and most of you already know me I'm a
past national board member of AIGA I'm
honored to be a San Francisco fellow we
had a fellow's gathering yesterday and I
consult with a lot of studios and
agencies on design business issues and
I'm really happy to be joined this
morning by Linda join cat Winkle Linda
Joy's an intellectual property attorney
she began her career with a degree in
Communication Arts from Virginia
Commonwealth she studied with Philip
banks and she worked as a graphic
designer in it and an illustrator for 13
years before she went to law school so I
still don't really understand the
motivation to go from the creative world
into law but I'm very happy that she
made that transition so she received her
law degree from Hastings and now she's
been working for a very long time
helping designers and visual artists and
some creative corporations on issues
related to copyright and trademark
protection infringement licensing
contracts I had her assist me with the
contract recently so please join me in
welcoming Linda joy
so they are the short story is my
husband and I decided it would be a good
idea to trip to channel my argumentative
nature outside of the home into the law
let me just I want to say why do you
care why why do we care about copyright
registration and there's a couple of
reasons that come up in my practice why
I care and why my clients care if you're
an independent designer this is the way
that your work gets valued and that you
can have a tool to get paid if you run
into a problematic client if you own
copyright they can't use it until they
pay you so that's a very important thing
sadly in a defensive posture if you have
a problem for people in house or for
your clients it enhances the value of
the work that you're doing for them to
make everyone aware that registration is
possible that your work has this kind of
intellectual property value and so it it
is a way to protect the value of what
you've created against outside copiers
against competitors of your clients who
might start copying the work that you've
done for them so this is an important
tool on both sides of that equation
right if you're making a selection and
arrangement of materials or data it
might qualify for its own copyright
protection if your selection and
arrangement has some degree of
creativity copyright is statutory
protection for original works of
authorship so there does need to be a
certain degree of originality in order
to qualify things like simple grids or
commonplace layouts would not be
considered original so there's kind of a
threshold that you have to reach before
protection would be available but that
does include most types of graphic
design and web
sign so if you create the selection and
arrangement but you didn't create the
elements that have been included then
your protection would be for compilation
authorship it protects only the
selection and arrangement that you have
made not the individual elements that
have been included most of those
elements are going to be creative but
some of them might also be non created
you might have things that are like
facts or data so the elements could be
lots of different things and we do this
every day we negotiate with authors to
use text illustration photographs videos
a lot of our projects now include music
animations so we're working on projects
where we bring together elements from a
lot of sources but if you are making the
selection and arrangement as long as
there's something original about it then
copyright protection would apply so
here's an example that has a lot of
elements this is a screen grab from
maybe a year ago of the aiga site and
you can see that we have elements that
have come from a lot of different
sources yeah so a lot of what you'll be
working with is content that your client
is giving to you so that we feel I hear
some of aig A's text content imagery
photography sometimes comes from other
places it's a mixture some of it might
be pre-existing some of it might be new
some of it might be from the outside
some of them might be by staff members
but the selection and arrangement would
qualify for protection and that's the
term of art the copyright law uses
selection and arrangement it applies to
what we commonly considered to be
graphic design right so I usually just
for my own understanding i usually try
to diagram things and here's my little
diagram attorneys don't usually diagram
Thanks that's what Jeff well I think
that's why I like working with Linda joy
we diagram stuff so I think if this is
being kind of two layers you have the
selection and arrangement as long as
it's sufficiently original and then you
have the
the various elements that you have
included and they can come from
different sources and they might also be
different in terms of their own
copyright status so we're going to look
at several different categories in terms
of copyright status for those elements
so here's one scenario you've made a
selection and arrangement and some of
the stuff that you've included didn't
qualify for its own protection
individually so this includes things
like facts facts not copyrightable lists
of data blank for playing horns a
subscription form that might be on the
back of a brochure you designed that
blank form by itself it's not going to
be protected common geometric shapes or
symbols like circles where's heart
smiley faces you don't need any
permission to use those things so under
us copyright law there is some stuff
that just it never qualified it does not
have its own protection and you don't
have to worry about that so here are a
couple of examples here's a blank form
not protected by copyrights even though
there's some design obviously going into
it a copyright law doesn't think it's
enough to protect it and the digital
typefaces that you have used of course
they're protected by their own copyright
and you have a license for using those
fonts here's another example a calendar
that has a copyright protected image up
on the top but down on the bottom this
is standard calendar information that's
not protected by copyright it's factual
so if you want and what you might do a
really beautiful calendar layout the
basic grid system the weeks and so on is
just not protectable so anybody can do a
calendar even if they make one that
looks very similar to the bottom portion
of this that you've made there's not
going to be a copying a legal
you're an infringement for that piece of
it yeah if March twelfth was a Friday
that's just the fact copyright does not
protect work that consists entirely of
information that is common property and
contains no original authorship going
back to my aiga example here's one of
those common shapes in this case it's a
simple shield that is not protected by
copyright so you could use a sealed
shape as part of your design and you
wouldn't have to approve that with
anyone the next scenario is to use stuff
that used to have copyright protection
but now it's old enough that it's in the
public domain so copyright generally
laughs the life of the person who
created the word plus 70 years so a lot
of things are older than that free to
use even if at one time they were
protected generally at this point
anything that was created before 1923 is
now in the public domain so you would be
able to use that without having to to
get permission sign a license pay a fee
so in old paintings old photographs
those kinds of things although in terms
of paintings that's something that my
students asked a lot about them the
painting itself may be in the public
domain but if you're using a recent
photograph of it the photograph probably
has copyright protection and it may be
controlled by the museum only it worse
only if the museum did something fancy
if it's a straight on shot of a work and
the point of the photograph is to show
that work really perfectly the courts
have said no there's no extra copyright
in that so sometimes protection has
expired and i have an example here that
you guys are probably familiar with
there are companies that specialize in
old clipart so they've gone through
publications from the 19th century and
gathered images and they present these
collections and they they're using
things that are already in the public
domain the next scenario is that you're
creating a selection and arrangement
that includes elements that are created
and currently
owned by other people and this is our
standard situation this is the situation
that we deal with every day so the
individual elements are already separate
and independent works they are owned by
other authors so examples of this would
be brochures or websites where all the
contents created by your client or
licensed from other sources you can only
use those things with permission so
getting back to my calendar example that
would be the situation with photograph
at the top so you have selected a series
of photographs and you have gotten
permission to use those for this
particular project another example would
be the aiga website so there are
articles here from a lot of authors and
aig a national staff has gotten
permission to use all of those things
illustrations photographs this is kind
of the standard situation another
scenario might be that you create some
new elements that are going into your
compilation and now we get a special
term that's its referred to as a
collective work so collective work just
means a compilation where some of it is
new material that the same person who
did the graphic design also did that new
material good example would be you're
doing work for a client and you're
redoing their corporate identity so
you've got new logo work mixed in with
some of their contents right so that
your copyright in the collective work
includes your selection and arrangement
and then the new element that you that
you created for it if you're using
elements that came from other sources of
course you still need permission for
those so here's an example of that this
is a table of contents for a magazine
and you can see that there are images
from various sources articles from
different authors and then there's also
an article by the editor there's an
introduction by the person who did the
compilation so that's what
moves us into this special special
category it's a collective work another
issue that might come up in your career
is that if you're doing a portfolio
piece maybe you've connected with a
publisher and you want to do a coffee
table book about all of the great
identity systems that you've created
well you need to think back on those
earlier projects and figure out who owns
them now even though you created them
they might now be owned by your clients
you may have put that into your contract
the best practice is to get permission
from your client if they now own it
before you put it in your portfolio
there is a concept of fair use that
would allow you to show your work even
if you don't own copyright in it but
increasingly we're seeing clients
challenge that and so our advice is to
always make sure that's clear yeah you
probably are especially on identity
systems you probably assigned all rights
to the client and so in your contract
you wanted them to give you a license
back to use those things for self
promotional purposes and this comes up a
lot actually in the creative community
you might do a book project but this
might also relate to your studios
website so I'll show you a couple of
examples from pentagram they recently
did a hardcover book showing all of
their great identity systems they needed
permission back from the clients so
hopefully that was in their original
contract a lot of times clients are
worried that you're going to show
preliminary work or rejected designs and
they don't want that out there or
they're worried that you're going to
trade too much on having worked with
them and try to make it look like you're
more what's the word more associated
with them then you really are if it was
like a one-off project so those kinds of
things can be worked out in your your
contract with your client as well and
the way that we usually solve it is to
say that you have portfolio rights with
the final work for to show the final
work after the clients already put it
out
they're so if you've done a new package
design you have to wait till that
package is on the market and then you
can put it in your portfolio and usually
that satisfies the client for those
kinds of issues some clients are really
focused on this issue i remember when i
worked at meta design we did a big
project with nike and nike didn't want
to give us approval in advance to use
the work for self promotional purposes
they wanted us to approach them after
the work was completed and they wanted
to give be able to give us individual
permissions for specific uses I don't
know why it created a lot of sort of
additional negotiations and paperwork
after the fact but they wanted to be
able to pick and choose how we promoted
ourselves using their project here's
another website that features a lot of
client work a lot of packaging creation
of brand identities so you would want to
have a contract where you have licensed
the finished work back to the studio for
portfolio use and Linda joy and I have
also been very involved in the aiga
model contract language we have
something called the standard form of
agreement for design services that's
available for free on the aiga site and
it's a model contract there's a lot of
stuff in there but we did address this
portfolio usage issue so if you haven't
done this already you should go to aiga
org and download the free pdf it looks
like this so that's the cover and the
first few pages are basically an
explanation of what's in the contract
and why it's important how should you
use it and when you get to the ownership
and use of intellectual property we have
four different options you should read
through the document it explains why
there are four different options but we
also have language in there where the
client has licensed it back to you to
use for promotional purposes and this is
that clause this is that that paragraph
so if you're working on a collective
work of your own past stuff maybe
ownership pass to your clients but if
you're working on an entirely new
project you might create all new stuff
and sometimes this is the case if you're
creating something like that children's
book where you develop the story you
create all of the images you make a
selection you do the layout so your
copyright before the collective work
would include everything all of the
elements and as a non-attorney one of my
questions to Linda joy was well how does
that work later on if somebody wants to
license a portion of it can I license
out just a piece of the copyrighted work
yes even though there's one overall
copyright that covers all of the
elements you can still negotiate so
here's an example from San Francisco
designer named Craig Frasier lately he's
done several children's books and the
typical book has maybe 36 illustrations
a dust jacket patterns on the end sheets
and later on if a publisher wanted to
maybe produce the end sheets as a gift
wrap you can license out a portion of
the collective work so that's a quick
overview of what it is that we're
talking about and now we want to show
you some screens actually from copyright
gov to give you a little bit of guidance
about the registration process so if
you're registering online the sites that
you go to is called e Co the electronic
popular copyright gov and then there's a
link to the e co online registration
system and you should do this because
they keep upping the fees for trying to
do it on paper it's almost five times as
much now they really want you to use the
electronic form but it's not friendly at
all if you don't make it easy especially
for compilation authorship they do not
tell you how to do that so that's why
we're showing you and there are some
birds that you should not use because it
sends them the wrong message they're
going to misunderstand what it is that
you're trying to do so we'll walk you
through the steps here just very quickly
this is one of the initial screens this
is the overview of the registration
process and then once you begin the
process we want to give you some advice
in these specific areas there's a screen
where you explain the types of work
there's a screen that deals with titles
they want you to provide information
about the authors of the work and then
we also have some advice about this
screen where they're asking you about
limitation of claims so can you see that
yeah so we're on the title of the work
and the important thing to know here is
you never call your work graphic design
this is a red flag term that the
Copyright Office has decided equals
layout and they don't register copyright
in layout so it's a misunderstanding on
their part of what graphic design is
they are correct that straightforward
layout like the blank forms we showed
you are not copyrightable but what
you're doing is compilation authorship
it is protectable just don't use that
term and never use the term layout
either that'll get you a red flag and an
argument with the examiner and lots of
trouble right so that's the type of work
and then the next one is title no I
thought we were okay so in the title you
don't the type of work you just check
visual art I think it's called a work of
the visual arts we checked that next
thing is title you don't use those terms
you don't use format layout or graphic
design use the name of the project or
just give it you know project number two
or something like that the title is just
for their record keeping it doesn't have
be exactly the same as what the public
would see a lot of times your work
doesn't have a public title right so the
next one is authors and here there's a
field down at the bottom that it looks
small it doesn't show you all of the
text that has been entered so I've
expanded it this is the text that you
need to enter so like I said they don't
tell you how to register kapolei
compilation authorship but you can do it
by using this other field here and this
is the language that you use compilation
authorship namely selection and
arrangement of images and text the next
one is limitation of claim and this is
where you tell the Copyright Office
what's in your compilation that you did
not create and it's just by category you
don't have to lift the specific
photographs but if you have photos in
your work that someone else created that
was brought to you for the project and
you're not claiming that you created it
this is where you list them in these
categories and you'll see also text
doesn't usually show up so you have to
put that in another category another
screen comes up and says what have you
added to this work okay yeah it's on
this it's on the same screen on the on
the right hand side the new material
that you've added if all you've done is
compilation you put the same information
in that other box you see it down there
if you've added a logo or you've
designed any other type of work part of
a collective work then you check those
boxes there for what you've created so
it makes sense we've actually put
together a text description of this
there's an article that's in the current
issue of Communication Arts which
basically has the voice-over narration
that we've been doing here we did it as
an article for Communication Arts so
probably a lot of you are already
subscribers but this is what the article
looks like and it's in the current issue
so it's on the newsstands now yeah and
Linda joy also does articles for aiga
and for the large law firm that she's a
part of she has a series of articles
called legalities you can find those
pretty and i believe the last one I did
is about this as well so you can get the
step-by-step information there right
there's also a section on copyright in
the book that I have which I think we
might be in the bookstore here at the
conference so we have time for a couple
of questions she's saying that if if you
sign a contract that does not have any
copyright language in it is there some
sort of a default yes under copyright
law the default is it stays with the
designer and what the client gets if
there's no language at all no
contractual information about this what
the client gets is a non-exclusive
license to use the work that they paid
for but they don't get exclusivity
unless something is in writing and
signed by you giving it to them you
could just speak a little bit because I
think sometimes it's confusing for
designers they work in a small firm who
have to copyright to their work so the
difference about work if you are
employed by a firm versus if you're a
freelancer in the different contracts
you need for that so there's a workplace
for hire is a term of art in the
copyright law it doesn't mean exactly
what it sounds like it means every
client who Commission's you to do work
is not creating work made for hire just
because that's what it sounds like this
is a specific set of circumstances the
first is easy if you're an employee all
of your work is owned by your employer
under the work made for hire doctrine
they are considered the original creator
of the work they own copyrights from the
get-go and that's the easy one another
category of work made for hire is if
you're not formally an employee but
you're treated like one
in a way that the law would think that
you're essentially de facto an employee
that happens fairly rarely but it gets
litigated a lot when companies want to
own the work that a regular ongoing
relationship with the designer sounds or
feels like an employee the other type is
you can have work made for hire language
in a contract with a freelancer and if
you have that language in there you
might get work made for hire but it also
has to fit these nine categories of
types of works that the Copyright Act
says will qualify as work made for hire
collective work and compilation is part
of that but it won't automatically be
work made for hire unless your contract
says it yeah you have to have a written
agreement I don't have the magic words
we all hate for hire and it has to it
has to be a work I believe that its
newly commissioned it can't be a
pre-existing thing right and it has to
fit within the nine statutory categories
and a lot of clients don't understand
that they just say oh let's make this
work for hire but if it doesn't meet the
legal criteria then it doesn't qualify
as work for hire you would have to be
acknowledged as the author for legal
purposes and then the client has to
negotiate to acquire those rights from
you it would be an assignment of all
rights in exchange for full payment of
your feet so when I'm working on the
client side of things I always make sure
there's what we call a belt and
suspenders approach there's a work made
for hire provision and then there's a
backup saying if anything's deemed not
work made for hire than it is assigned
to the client and you'll see that
language quite a bit and both of these
options are in the aiga model contract
when you get to the schedule a options
for ownership with intellectual property
there's one that addresses work for hire
there's one that's a full assignment of
all rights and then we have a couple of
others that relate to licenses
aspect work who owns that work after
after they've done it let's say 500
students send their working for this
competition arm and and they select one
but does the does the organization that
actually put out the competition own all
the work that was sent to them and do
they have a copyright over all that work
well unfortunately a lot of these
competitions are putting in language in
their entry form that assigns all the
copyright of every entry to that company
it's egregious it's very very bad but
that is how a lot of them are doing it
so that would be considered a legally
binding contract and the copyright goes
to the company for all the entries
regardless of whether they're chosen so
I would really like to see especially in
the academic side of things some
education about this and some pushback
on these competitions they really don't
need to to own 500 entries they might
have a rationale for owning the one that
wins but the rest of them should not be
assigned over just for the benefit
quote-unquote of being able to enter a
contest
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