May 5, 2021
Intellectual Property (IP) and Graphic Design
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.
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;
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.
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.
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.
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.
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.
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.
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.
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!
Update
We have recently published other articles on IP in February 2023
Intellectual Property (IP) 2023 recap - Graphic Design in Australia
Intellectual Property (IP) and Logo Design in Australia
The information on this website does not constitute legal advice. You should seek your own legal advice, where appropriate.
