May 5, 2021

Intellectual Property (IP) and Graphic Design

Intellectual Property (IP) and Graphic Design
Intellectual Property (IP) and Graphic Design
Reading Time
10 minutes

Intellectual Property (IP) can be a complex thing and it’s something we encounter often in our business. In this article we will discuss how it relates to the ownership of a design or job produced by a graphic design studio or agency.

Firstly, who owns a design created for a client?

Great question! IP laws in Australia protect any design or artwork created. All work during and upon completion immediately carries copyright ownership which is owned by the author or in the case of a design studio, the entity which employs the designer.

When a job is commissioned by a client, a client pays for the end job. In the case of a digital flyer being created, the client is paying for the final digital flyer for their use. It does not include;

  • the original project files which can be used to reproduce or reuse the design
  • the rights to use the overall design tone/theme or overall aesthetic to be reproduced for other jobs in the same style
  • an ongoing ‘file bank’ where the client can repeatedly ask the designer to locate and transfer the file from archive and send to all manner of recipients due to them not storing the finished job securely (we know sometimes things get misplaced and will help out on most occasions).

But I’m the client, why shouldn’t I be able to obtain the project file so I can use it personally or send to another designer?

Graphic Design businesses are generally modelled on repeat business. Repeat business comes from the design studio/agency creating great work that a client would want to continue to use. As the designer has created the aesthetic you wish to repeat, they should then receive the ongoing royalties from creating that work for other projects.

For example, this stops a client going to a designer who attracts a high rate (due to their skills and experience) who create amazing and unique work, and then taking that design to another designer to reproduce similar work for a cheaper rate. The hard work in establishing the aesthetic you wish to repeat has been done, for another designer to reproduce will take minimal time.

What about Logos and company identity? Does that mean that I cannot use my logo as I wish without infringing on IP?

In theory, yes. However, one could argue that a logo created needs to come with flexibility on its future use as an identity for the business it was created for.

For this reason, design studios (such as OE and the majority of designers in Australia) allow the copyright and IP ownership transfer to the client upon final payment of the logo/branding job. Exercising IP ownership on logos would be far too restrictive for clients and unethical in nature.

What about websites? Who owns the website?

Similarly, for general design, a client who commissions a website, is commissioning the final product as delivered on the launch date. The final product is the completed html (or other code language) files stored on the server accessible through the internet. It does not include the original project files and their contents, much of which will include many techniques and methods of delivering a great looking website with amazing SEO. In our case, having been involved in designing websites since the early 2000’s, there will be a high level of knowledge learnt over time which will help the website display as it does, rank well in search and so on.

For example, our own website has received an unimaginable number of hours spent on designing and testing of which the follow-on effect is that the client gets to enjoy the results, particularly when it comes to being found in search engines. You are paying for this expertise and knowledge, but you are not paying for the rights to the project files which could be potentially reverse engineered and used to the advantage of a competitor.

What happens if I want something designed that you cannot accomplish or is outside of your skill base?

In this case, we will release project files directly to the other designer/architect/engineer only for the purposes of the described job and that job only. We will require a signature from both the client and the other designer that signals their acceptance of this, prior to files being released. If we feel that we could design for this purpose, we may not agree to releasing the file particularly if the client has a history of breaching IP with us.

What about when I bring a previous job to a new designer to recreate?

When you bring an existing item to us, you indemnify us from any IP and Copyright liability in acting upon your instructions to create something similar. This would infer that you have ownership of the collateral.

Ultimately if we re-create something for you that is not owned by you, not only are you liable for any future liability, but we may be as well.

Can I purchase project files from you for use by someone else?

Theoretically, yes. This is not ideal for us as by doing this, we are essentially giving away all future work for this client. To work out a fee, we would take a look at the history of the client’s work and then apply this in our calculations to get to an amount.

Will you prepare work for me, if I am upfront about having project files released upon completion?

Of course! If you let us know upfront, we will arrange a fee to release the files upon completion and this will be included in the amount quoted. Unfortunately with websites where custom code is produced, we will not release project files.

Whilst some of the above points may seem tough, you need to consider that by infringing upon IP and Copyright you are essentially stealing from the author and their intellect which created the design.

Parallel examples of IP can be found in;

  • Architecture – when a building design is made you are purchasing the final plan. You are not purchasing the original project files that can be modified.
  • Restaurant – when you purchase a meal, you are not purchasing the rights to the recipe, ingredient list, cooking method and the utensils and equipment used to prepare it. You are purchasing the meal.
  • Video Games – when purchasing, you are purchasing the software for your personal use, the files that created the components within that software are not provided for you to modify or do with as you wish.

We thank you for taking the time to read this article and we are always available to chat with you before starting a job, to ensure you’re happy with the terms and conditions and field any questions before proceeding!

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