05.02.19 / The Haves and Have Nots – to what extent do clients have a claim over raw files?

The Copyright Act 1968 (Cth) provides that the author of an artistic work, such as a graphic designer, is the owner of copyright subsisting within that work. Upon payment of the designer’s fees, the client is provided with the finished design and permission to use the finished design.
This permission comes in the form of a licence allowing the client to use the design for the purposes for which it was created. Permissions may also take into account whether use of the design is exclusive to the client, or whether the designer can use the design and incorporate it into work performed for other clients. Sometimes, a client requires a much broader set of rights to the design, in which case an assignment transferring ownership of copyright from the designer to the client is more suitable.
However, more often than not, the above agreements only take into account the finished design rather than its raw file.

A Valuable Blueprint
Being a malleable blue print for the final design, raw files form an important part of a designer’s intellectual property. The manner in which a design comes together may involve aspects of practice unique to the designer or their studio. A raw file enables the designer to edit, change and modify the design. This means that if a client was to receive a raw file alongside the finished product, they could very well modify the original design. Ordinarily, unless a client requests to be provided them, raw files remain the property of the designer.

Terms and Conditions
In order to maintain control over your creative processes and know-how, consider the following:
• Do your terms and conditions state that raw files are to be provided to the client? If so, do they deal with sharing raw files?

A designer’s terms and conditions should distinguish between the finished product (i.e. deliverables) and pitches, drafts, unused ideas as well as raw files. They should also clearly state whether the provision of files other than the finished product is included in the designer’s quote, and if not, set out how these additional costs are to be charged.

• Does the raw file incorporate materials obtained from third parties, such as stock images or fonts? Who holds the licence to these materials?

You will need to consult the licence of each of the third party materials to ascertain the extent to which that material or a work comprising it can be shared. In other words, the client may own the finished product but they may not necessarily own or be able to own each of the separate elements comprising the finished product.

In the Absence of Terms
But what if you don’t have terms and conditions which can easily answer the above questions for you?
The first step requires consideration of the contents of your quote or proposal and any other correspondence with your client. Does the quote or subsequent correspondence deal with the purpose of the finished product? If the purpose includes or strongly implies that the client should be able to edit the finished product, then the client may have a claim to the raw files also. Ideally, a designer’s quote or proposal should clearly state the purpose of the designer’s work and itemise what is included in the finished product.
To that extent, it is important that the price quoted accurately reflects what the client is receiving from the designer. A designer is entitled to charge their client a premium for providing the client with raw files where doing so is outside of the scope of the original quote or proposal.
Ultimately, clear communication with the client is the key to avoiding disputes about file ownership. It is vital that a designer manages their client’s expectations throughout the engagement starting with a clearly set out scope of works.

We Can Help
As AGDA’s lawyers since its inception, we are always ready to help AGDA members understand their Intellectual Property rights, to review the specific terms of any contracts, or to assist in drafting clauses that can be used to ensure they keep control of their work. For more information, simply email us at mail@finns.com.au or give us a call on (02) 8297 1100 for a free initial consultation.

This article does not constitute legal advice, and is not intended to provide a comprehensive statement of the topics discussed within. This article does not create a solicitor-client relationship between you and Finn Roache Lawyers. You should seek legal and/or other professional advice before acting or relying on this article.

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