Ethics in Graphic Industry
Copyright is the exclusive right to control reproduction and commercial exploitation of your creative work. Copyright protects any kind of artwork, including illustrations, photographs and graphic design. Except under certain circumstances (see “work made for hire” below), you own the copyright in your work at the moment you create it in a “fixed” form of “expression.” A fixed form of expression is any tangible medium that can be perceived by humans, including traditional forms—such as paintings, sculptures, writings—and new forms that require a machine to perceive (e.g., GIF files, CDs, websites).
Frequently, your client will want to own your copyright. That means your client will own the entire bundle of rights, and you no longer have the right to control how often, or in what manner, the work is used. This is not always necessary or appropriate. Generally, it is better for the scope of the license to closely track the client's intended use of your work. For example, suppose you are hired to do a spot illustration for an article in a weekly magazine. Your fee is the standard, reasonable amount for that one time use. However, if your contract assigns copyright to the magazine, the magazine can use your illustration again, for example, it might adapt the illustration to create a logo for an ongoing weekly column, without any further compensation to you.
On the other hand, if your contract grants a one-time license to reproduce the illustration, the magazine must seek your permission, in the form of another license with another fee, before it can legally adapt your illustration for the column logo. This is true even if your license to the magazine is exclusive, that is, if you agree not to allow any other entity to publish the illustration. The magazine's rights would still be limited to the one-time use identified in your contract.
Another important reason to retain copyright is to ensure that you have the right to create similar works for other clients. If you assign copyright to one client, and then create a similar illustration for another client, the second illustration could infringe the first client's copyright in your earlier work. For example, in one case a jury found such infringement with respect to greeting cards that the same artists had created for different companies.
Obviously, for some types of work it is appropriate for the client own your entire copyright, for example, corporate identity packages, logos, websites or any other works that are intended to have an ongoing, exclusive marketing presence for your client. It would not be appropriate for you to re-license that kind of work to another client. In such situations, you should ensure that you have the continuing right to display and reproduce the work in your print and online portfolios; otherwise, you no longer need to worry about copyright.
“Fair use” will excuse an otherwise infringing use under certain limited circumstances. The courts balance several factors to determine whether a particular situation qualifies as fair use. Generally, non-commercial editorial or educational uses will be fair use. Parody will also qualify, but only if the work directly parodies something about the original work. For example, a Los Angeles federal court rejected the fair use defense for a parody entitled “The Cat NOT in the Hat! A Parody by Dr. Juice,” which used verses and artwork reminiscent of Dr. Seuss to mock the O.J. Simpson trial. The court did not believe the book also critiqued Dr. Seuss.
“Transformative” works may also be fair use. A work is “transformative” when the copyrighted material is “transformed in the creation of new information, new aesthetics, new insights and understanding.” Under this standard, a New York federal court recently held that a collage-like painting by Jeff Koons, which incorporated an image copied from a fashion photograph with other disparate images, was fair use.