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For work covered by copyright, the law states that the creator of the material is the owner. It does not matter whether you were commissioned by a client to do it or not, you own it. Clients often think that if they pay for something, they own it. Wrong.

The client gets an automatic right to use it for the purposes for which it was commissioned. Not ownership, but limited usage rights.

The words in italics are incredibly important. If a client tells you that a logo is needed for a small promotion (clients love to downplay usage in the hope that you will charge them less), that's what he or she is entitled to use it for. Nothing more, nothing less. How do you work out the purposes for which something was commissioned? Look at their brief (if any), your response to their brief and your estimate. Your estimate should clearly state exactly what they can use the work for.

You have to be as specific as possible - ie "Spring Sale mailout for September 2002". If you leave out "September 2002", they can use it for any Spring Sale for at least the next 50 years. If you leave out the word "Spring", they can use it for any sale promotion. If you leave out the word "mailout", they can apply it to anything. Get the idea?

If the client decides to use the logo beyond the promotion - for example, permanently on packaging - they are in breach of your copyright.

You will be entitled to claim compensation for unauthorised usage - the amount that you would have charged if the client had originally told you about this new usage.

You should politely point this out to the client. Do it in writing, and put the words "Without prejudice" on your letter. Follow up with a phone call.

If this doesn't work, then a letter from a copyright lawyer is the next step. Lawyers' letterhead can sometimes persuade stubborn businesspeople to suddenly become reasonable.

Trevor Choy is the principal of Choy Lawyers, ranked as one of the top 10 intellectual property law firms in Melbourne by Legal Profiles 2001/02, the legal who's who. Trevor is the only Australian lawyer who has worked in the advertising industry, and for the last 8 years has focussed on advising Melbourne's top graphic designers, ad agencies and consumer product companies. In recent months, he has been interviewed by the Age, Sydney Morning Herald, Herald Sun, Channel 9's Small Business Show, Channel 7's Today Tonight, Radio National and Robert Gottliebsen for Business Daily, as well as a number of specialist publications.

More information is available at http://www.choylawyers.com.au

"What would you do!! I had a client who I was on a retainer with on a fortnightly basis charging them through my business. Without warning they terminated the agreement and asked whether i would freelance for them and also for my files. I suggested my new rate and also wrote that all the files on my computer belonged to me and suggested if they wanted them, a fee should be negotiated. I also had an outstanding amount from the retainer, but they wrote saying they wouldn't pay my last invoice unless I gave them the files. Do they belong to me? And do they have the right to stop payment on my agreement invoice unless they get the files?"

"Copyright inclusions in project estimates should be an industry standard. Has AGDA established an industry standard? If the words have been created by a legel eagle, then the standard is more likely to be successful. This would be so welcomed in our industry. Its my understanding that when dealing with large companies, they automatically expect you to sign over your copyright ownership, prior to proceeding with any work. Its impossible to say no to this, however I believe a copyright release fee per project, should apply in this case, opposed to nothing."

"Dear Trevor, can you clarify for me "Intellectual Property?" It is one thing for clients to ask for completed files (ie a completed and printed brochure), but what if the files his requests consists of concepts including, logo, DL brochure and various point-of-sale items? Which have not been printed yet. The Client has his own "graphic designer" who will take and alter the files. Am I right in saying that this is my Intellectual Property, even though it has not been offically registered as such?"

"Hi there. This is a great article and right up my street as I'm coming up against a confusing situation myself: I designed brochures etc for an employer in the design industry. Now that I've left (and am out of my period of restraint of trade incidentally) I want to use that work on my on-line portfolio - in exactly the same way as deisgners have used their work to promote themselves since the dawn of time except, until the advent of internet, only in a physical portfolio. My ex-employer is trying to stop me using the work like this as he claims it's unlawful competition etc and he say that the intellectual property of the work vests in them and/or their clients.

Am I doing something illegal? I'm not trying to pass myself off as them or even approach the clients the work was done for. My site is purely a vehicle for showing what kind of design work I'm capable of.

Many thanks,

Mark"

"Hi Trevor - are you able to explain font licensing? It seems to be a tricky and confusing area for designers. Firstly, do we have to own all the fonts we use, eg even if it's for conceptual work? And then, if we design work for a client, does the client need to purchase it too? If so, who should pay for it? And, would the client require to own the Mac version for printing and the PC version for templates, etc? By the way, this page has been of great help. Thanks"

"Sha-mayne, it depends on your employment contract with your ex-employer and whether there is a clause restricting use of work. Normally, it should be possible to show work provided you have proper acknowledgements. BUT you need to check this, because sometimes clients will have contracts with designers that prohibit use even in their own folio. Ideally, you should check with your ex-employer and get written permission, but of course you will have had to leave on good terms otherwise it will be difficult."

"The designer (Fiona) and client (Viviane) viewpoints have both been expressed here. I think the best solution is for the designer and client to BOTH be very clear about what is expected from the relationship. What exactly will work be used for? This should be clearly stated, so that the designer never feels cheated if the work is applied elsewhere and the client doesn't feel blackmailed if the designer asks for more money. If clients are wary of copyright, then they should be told what the costs are - with and without copyright changing hands. They can then make a decision. Clients are actually human, and most will not be unreasonable if it is explained to them. They are scared of designers abusing copyright. That's what the IT guy is worried about."

"It is very interesting but what if a person comes to a graphic designer and says here are some pencil sketches of what I would like done in colour and ready for a printer to use. Who owns the design and who owns the copyright. Also if a graphic designer does not mention copyright or ownership of work done by them and does not give estimates or contracts but then does try to insist on these once it looks like these works will be used Australia wide? The poor client is over a barrel?"

"Hi Trevor? As I have just started my own design business, I'm a bit confused as to what I am allowed to show in my portfolio for prospective clients. If I created work as an employee, am I allowed to show that work with a disclaimer noting that the work was undertaken whilst working there? Obviously I'd like to show what work I have done and want to be honest about where and when. Help please!"

"VERY interesting article. And most interesting feedback.

This sticky point has always scared off most of the potential clients Ive met with. Im not saying I dont get work - I get some here and there. But the copyright issue discussed puts off most clients who have a sound business mind.

I find that if youre client is, for example, a restaurant owner whos only knowledge is in the food they cook, and who doesnt have a sound business knowledge, then theyre not going to mind too much about the rights to the work you do. But if youre pitching a job for a client that is very business savvy, for example a guy whos just started his own I.T. company, then there is usually NO WAY they are going to hire you to work on a design project and let you have the rights to your work as well.

You have to sign your life away to get a job these days!

I work in Adelaide, so it may be a small-city thing. Has anyone encountered much of the same?"

"I like the idea of how the copyright law work, this article has cleared up a lot of things for me, but letting a new client know that they won't have ownership to the design even though they have paid for it, wouldn't that scare them away?"

"Surprisingly This article helped me a lot. It was what I was looking for and I am glad I was refered to this page."

"No, David, if you create work as an employee, your employer owns the rights to the intellectual property. But if you are an independent contractor, it belongs to you."

"AGDA, good article and I have some questions about it if someone can tell me??

If you are employed by a business as a Graphic Designer is the work your property after you leave or is it still the businesses property. I have never followed up this point but would believe that it is still my property because it is my intellectual property? Am I wrong?"

"Peter, I know it may piss them off. That's exactly why I said it is essential to be crystal clear in the estimate. I said that the "without prejudice" letter should only be used AFTER unauthorised usage happens. Thanks to you and ds9r for your feedback."

"(You should politely point this out to the client. Do it in writing, and put the words "Without prejudice" on your letter. Follow up with a phone call.)

Dropping this info on your client after you have done the job is a sure way to piss then right off! Some advise...inform your client before you undertake any project of these terms, not after the project is finished. Otherwise you may not have too many clients left!!! (for what it's worth)

Thanks ADDA... Great article."

"very cool and informative."