February 17, 2023
Intellectual Property (IP) 2023 Recap - Graphic Design in Australia
We wrote an article on IP back in 2021, but we felt it was time for a bit of a recap.
Intellectual Property Laws protect the rights of an author (or entity) and for the purposes of this article, we are referring to the graphic design industry. (Before you go to deep into the following, please understand that logo design is a separate subject, which we will cover in an article next week!).
When a job is commissioned with a graphic design business, the client is paying to have their project designed and created using the project brief for that purpose.
Here’s an example scenario;
The client goes to a graphic designer to design a sales catalogue for their business.
The graphic designer creates the catalogue and after a few changes, the client approves the artwork.
The graphic designer then prepares the print file and sends it to a commercial printer. 5000 catalogues are printed and the client after paying for the design and print work, owns the printed catalogues.
The client then requests a version of the catalogue for digital use.
The graphic designer makes the appropriate changes and sends the digital copy of the catalogue to the client. This attracts a small fee for the time spent to convert the print document to one suitable for digital distribution (eg changing colour format and revising the colours, reducing the image sizes to a size suitable for digital distribution and possibly adding website links to the brochure, removing print marks and more).
Six months down the track and the client requests the original working file of the catalogue so they can make changes and updates themselves.
The graphic designer does not comply with the request as the original working or source file is the Intellectual Property owned by the graphic designer and giving it away means giving away the designer’s (or design firm’s) IP.
The client does not agree.
In this example scenario, the IP is owned by the graphic designer / design firm.
The IP used to create/design this catalogue is;
The catalogue will also include font and typeface licences that the graphic designer has the legal right to use in a commercial design practice along with where they are sourced from and how they are installed into the design software. Things that also may have been used in the job may be stock photography or elements which are also licenced by the designer for the commercial use of the client. The above examples of what the IP is for a project of this type, show the professional services or expertise expected of the graphic designer by the client. Having a design job commissioned does not include access to the designer's knowledge required to perform the duties of the commissioned job and passing on this information through the supply of a working or source file.
IP laws in Australia also prevent the client taking a design they had created by a graphic designer, to a different graphic designer and having them copy the style or format. This prevents a client from having something designed by Graphic Designer A, and then having Graphic Designer X recreate it in the same or similar style or format for a significantly reduced price as can be a common occurrence with clients outsourcing work internationally to save on costs. In this case, both the client AND Designer X are liable for any possible recourse for damages. There is a myth that if the design is copied to the level of 10%, then it's legal. This is 100% untrue.
"You can’t reproduce any percentage of someone’s work for commercial purposes without their permission." Australian Graphic Design Association's (AGDA) guide "Protect Your Creative"
In summary, if the design work you had created is of a standard that is good enough that you wish to have it recreated, changed, modified or additional materials created in the same style, then Australian IP laws are in place to ensure that the original creator/author is remunerated for their design and subsequent design/s resulting from that original work.
There are instances where the IP can be transferred to the client. This is done with an “Assignment of Intellectual Property Contract or Agreement”. Note that assigning IP to a client will essentially dissolve any rights the designer/author had to the design and would practically mean that they would not receive any future work from this client. The cost to assign the IP from the designer or design firm would reflect this cessation of work.
A simple comparison in IP in another industry can be drawn to; a customer purchases a new Toyota motor vehicle from a car dealer. The customer then requests the blueprints and plans so that they could build their own vehicle. This could also relate to the different parts or software used in the vehicle to make the engine run, operate the safety systems and so on.
If you have a design job commissioned in Australia, unless you have an Assignment of Intellectual Property Agreement or a written confirmation from the design practice, then you do not own the IP. If you are unsure on where you stand, seek clarification from the original author or design firm.
