copyright-basics

If you are a designer, your bread and butter is your creative work. Unfortunately, the internet and other digital technologies have made it easier for copycats to steal your work or pass it off as their own. The law of copyright is there to protect you. But if you don’t know how copyright works or how you can use it to protect your work, it is pretty useless.

In this series of articles, we hope to arm you with some working knowledge on copyright and how you can use it to protect your creative work.

What is copyright?

Without getting into the legalese, copyright is basically the right to stop other people from copying, publishing or adapting your creative work without your permission.

Looking at from the opposite angle, the owner of the copyright in an original work has the exclusive right to copy it, publish it, display it, distribute it, or make new works from it.

What is not copyrightable?

Designers need to take into account that the following items cannot be copyrighted:

-       titles, names, short phrases, and slogans;

-       familiar symbols or designs;

-       mere variations of typographic ornamentation, lettering, or coloring;

-       mere listings of ingredients or contents

-       Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices

-       Common information such as calendars, measurement charts, TV guides

-       Government or legal documents

A number of these things may be protected by trademarks. But it will be the client, and not the designer, who will be entitled to apply for trademark protection.

If you are not sure whether your new logo design would qualify for copyright protection, consult a specialist attorney.

When do I have these rights?

Copyright comes into force as soon as you have transferred a great idea from your head to something written, drawn, doodled or typed on a pad, computer or sandstone tablet.

Do I need to register my copyright?

Registration is not a requirement for enjoying copyright protection. However in the US, registration is necessary if you want to enjoy certain benefits (presumption of copyright ownership, right to claim statutory damages) when suing a copycat in court.

What does the © do and do I need to put it on my work?

Putting a copyright notice on your work is not compulsory (unless you can use it as a new design element). But it does tell people that the work is copyrighted and prevents defendant’s from claiming innocent infringement when you sue them (damages are not payable by an innocent infringer).

Does my new creation need to be absolutely original to enjoy protection?

Your work does need to be original if you want to enjoy copyright protection. But the test for originality is not a strict one. Your work doesn’t need to be of the “never been seen or done before” kind. It simply needs to originate from you with an ounce of independent skill and effort thrown in.

Can I use someone else’s work to create a new one?

Using someone else’s work to create a new one may be copyright infringement if you don’t have that person’s permission. However, the copyright in the new work (known as a derivative work) will then be owned by both of you. You will be able to assert your rights over the new part that you created, even if you have infringed someone else’s copyright over the old part.

The distinction also needs to be drawn between copying, which negates originality, and using existing material or knowledge common to you and to other people in your industry. This common knowledge doesn’t negate originality.

If I create the work, will I always own the copyright?

The short answer is yes, but there are some exceptions. If you are employed and you design something for your employer, they will usually own the copyright.

If you are not employed but you do work for a client and agree to assign the copyright in the work to the client, you will not be the owner of the copyright.

How long does copyright last?

The term of copyright protection differs from country to country. But the rule of thumb is basically while you are alive and for 50 years after your death (70 years in the US).

Do I need to assign copyright to my clients?

This will depend on the way you offer your services or run your business. If you are designing a number of templates and licensing them to a number of people for a relatively low fee, you would want to retain your copyright. If you are designing customized brands and getting paid a lot of money for it, the client probably should be entitled to the copyright in that work.

However, the way the law is framed at the moment, if your copyright is not assigned in writing to the client, you will remain the owner. This is not common knowledge and client’s often mistakenly believe that they are automatically the owners of the work you do for them.

It is often a useful tool for getting your money by agreeing with the client that you will assign the copyright to them once they have paid your full fee.

What are the client’s rights to the work if I don’t assign them the copyright?

If there is no written assignment agreement relating to copyright ownership between you and your client, the client will generally have a licence to use your work. It will usually be implied that the licence is a non-exclusive, personal, irrevocable and royalty-free licence to use your work for as long as you enjoy copyright protection over the work.

The client does not usually have an automatic right to tamper with or change your work and they cannot sub-licence it to other people.

The best thing to do when offering your services is to present a written document to your clients setting out how you want to deal with the copyright issue. These standard terms can bring a level of certainty to your relationships with your clients and costly disputes can be avoided.

If I put my work on the internet, do I lose my copyright?

No, you will still enjoy full protection if you post your work online. Remember to put your copyright notice on the webpage containing your work just to remind people of this.

How can my copyright be infringed?

Your copyright will be infringed when someone copies or adapts a substantial part of your designs without your authority. Tests vary from country to country on what is regarded as substantial but the rule of thumb is that the substance of your work is that part that gives it its originality.

Your copyright can also be infringed by someone else who doesn’t copy or adapt your work but who distributes or makes infringing copies of your work available for sale or rent when they know that your copyright has been infringed.

What do I need to prove if I want to sue a copycat?

Outside the US where copyright registration is not used, you need to keep records of the works you create and that you created them. This should be independently verified by a third party (like Myows). Once can you can show the court that you are the owner of the copyright in the work, you must then show that there is some connection between your work and the copied version.

If you can prove that the copycat had access to your work before the copied version was created, that is half the battle won. However, the opposite also holds true. If the copycat can show that they didn’t have any access to your work and that they came up with the exact same work on their own, you will both have copyright in that work.

What defenses can be raised by the copycat?

Copycats will usually try to disprove that you are the owner of the copyright or that they came up with the work on their own. Getting independent, time-stamped evidence of when you created your work will again be an effective answer to these tactics.

Copycats often argue that, by your own actions, you have abandoned or waived your copyright in your work. It is therefore important that you remain vigilant and crack down on any infringements as soon as you discover them.

What does fair use mean?

Most countries allow limited copying, without permission, of protected work for private study, research, criticism, and news reporting. The copying needs to be fair in the sense that it should not deprive you of your rights or your ability to make money from your designs.

Most copying that happens is for commercial gain and the copycats will not be able to rely on the defence of fair use or fair dealing.

What are my legal remedies if someone copies my work?

There are a number of legal remedies you can ask the court for if you find someone has copied your designs without your authority.

1.    You can apply for an injunction (also known as an interdict) to prevent further copying or distribution of your work.

2.    You can ask the court to order the copycat to deliver-up all the infringing copies of your work.

3.    You can claim damages OR a reasonable royalty for the copies of your work that has already been made and used by the copycat.

4.    If the infringement was flagrant and you can prove that the copycat intentionally stole your design, you can ask the court to award additional punitive damages.

Can I threaten a copycat with criminal charges?

Yes, copyright infringement is also a criminal offence. Unfortunately, most countries don’t have dedicated police and court officials to deal with copyright cases. The case usually takes a while and you have no control over the process. However, criminal action may be welcome relief from the expense of bring a civil suit.

Do I need to appear personally in court to protect my copyright?

The laws of most countries allow you to bring your evidence to court in the form of an affidavit. You will only need to appear personally if the court needs you for further questioning or to provide more clarity on the evidence you presented by affidavit.

Do I have copyright protection in other countries?

You will enjoy copyright protection for your designs in most other countries who are signatories to the Berne Convention for the Protection of Literary and Artistic Works. The Convention guarantees protection of your rights in all countries party to the treaty at the same level as you would enjoy in your own country.

What is digital rights management (DRM)?

DRM is a technology solution to the problem of copyright infringement. Digital watermarks or disabling the right-click save mechanism for online images are two examples. International laws have been introduced to prevent DRM technologies from being hacked or circumvented in an effort to stop copyright infringement at the source.

If you have any queries, leave a comment, contact Steve (steveatniccifergusondotcodotza) or post your question on the Myows Forums.