“Copyright doesn’t protect graphic design.” We’ve heard this persistent urban legend from academics, lawyers and even some employees in the United States Copyright Office. But is this really true? Fortunately, the answer is no. US copyright law protects a type of work called a “compilation.” Graphic and web design often fit this category.
A compilation is defined as a selection and arrangement of materials or data. Because copyright focuses on “original works of authorship,” the selection and arrangement must have some degree of originality. Simple grids or commonplace layouts are not considered original.
Copyright for the compilation will be separate from copyrights for the content. However, if your work includes both layout design, such as a web page, and some individual elements, such as logos, photos, text or illustrations, you will own copyright in the layout and the elements you created.
COMPILATION CONTENT AND PERMISSIONS
Compilations can include a variety of content from different sources:
1. Some elements don’t have enough creative expression to qualify for copyright protection. This includes facts, lists of data, blank forms, and common geometric shapes or symbols, such as circles, squares, hearts and smiley faces. You don’t need permission to include them in your compilation.
2. Some elements qualify as creative expression, but their copyright protection has expired. Generally, anything created before 1923 is now in the public domain, and you don’t need permission to include them. Contrary to the popular misconception, “public domain” does not mean “publicly available” in terms of being easy to find online. Some works created after 1923 also may be in the public domain, but the analysis is complicated, so check with the source or a copyright attorney. US government works—for example, WPA artwork and photos taken by government satellites—are also in the public domain. You can use individual elements from collections of public domain works, such as vintage clip art and Dover Books’ collections. However, to avoid infringement of collection publishers’ compilation copyrights, don’t reproduce entire pages or a lot of elements from just one source.
3. If your compilation includes elements that were created after 1923, they are most likely protected by copyright, and you need permission to include them. Examples include brochures and websites with content licensed from third parties or owned by your client. As designers, we’re used to negotiating licenses from photographers, illustrators, and writers—all called “authors” in copyright parlance. Keep in mind that US law requires a signed written agreement to transfer copyright ownership or exclusive usage rights. Otherwise, permission covers nonexclusive usage rights only, and all copyrights, including rights to use the same elements in competitive works, remain with the original authors.
4. If you create some of the content as well as the overall selection and arrangement, then your copyright will be for a collective work. Your copyright includes your compilation authorship plus the individual elements you created. For the other elements, you will need permission from their authors. One example would be a website incorporating client or licensed content with new content, such as a logo. Another would be a magazine whose art director both designed the publication and created the masthead and editorial illustrations.
5. You might design a compilation for which you create all of the content, for example, a personal project or an in-house promotional piece. You—or your employer—will own copyright for the entire collective work.
If you are assembling an anthology of past work, such as turning your portfolio into a coffee-table book, be clear about whether you retained the copyrights in those preexisting works. On projects such as logos, websites and corporate branding systems, you probably assigned all rights to the client. Although you generally have a fair use right to show your work, your client contract may have restricted that right, especially if the work hasn’t been published.
COPYRIGHT OWNERSHIP AND REGISTRATION
If you’re an in-house designer, your employer owns the compilation copyright. If you’re an independent contractor or an outside agency, you own the compilation copyright—and any content you created—unless you assign it to your client. Your initial ownership of the copyright can be important in the unfortunate event that your client refuses to pay you. If your client contract specifies that copyright transfers only on condition that the client has paid for your work, then your client will be infringing your copyright if it uses your work without paying. This gives you better enforcement leverage than just a breach of contract claim.
Your compilation is protected by copyright as soon as you create it. However, you—or your client—need a copyright registration to enforce your rights, and early registration is particularly important if a dispute is likely. That’s because you can only get attorneys’ fees and statutory damages—a deterrent amount a court can order an infringer to pay you, regardless of actual profits or losses—if you register your copyright before an infringement happens.
Clarify for your client that rights to the compilation are different from rights to the content and ensure that appropriate permissions have been obtained for the various elements in your design. A helpful resource is AIGA’s model contract (aiga.org/standard-agreement), which addresses ownership and usage issues. You may also want to discuss registration. “Talking to clients about registering their compilation copyright is a great way to affirm our collaborative relationship and the uniqueness of our work product,” says Steve Barretto, principal of Oakland, California–based branding and design firm Barretto-Co. “It enhances their confidence in the value of our work as designers.”
COPYRIGHT DOES PROTECT GRAPHIC DESIGN!
Designers need to know about compilation copyright so that we can make smart decisions for our own firms and provide our clients with proper guidance. When in doubt, consult a knowledgeable copyright attorney—preferably one who works regularly with designers. Understanding these issues and making good decisions up front prevents costly mistakes later on. ca
©2016 Linda Joy Kattwinkel and Shel Perkins. Disclaimer: Legal information is not the same as legal advice, which evaluates the legal significance of an individual’s specific circumstances. Consult a lawyer for professional assurance that this information, and your interpretation of it, is appropriate to your particular situation.
REGISTERING YOUR COMPILATION COPYRIGHT
The Copyright Office’s online registration process is called eCO (copyright.gov/eco). However, eCO guidelines are not clear for registering copyright in graphic design, and there are some pitfalls to avoid:
• Never use the words “graphic design,” “format” or “layout” in the title of your work or to describe your authorship. The Copyright Office conflates these words with the concept of a blank template, which is not copyrightable. Instead, use the terminology described below.
• The first screen you encounter will ask you to answer three questions. First: Are you registering one work? Check “No,” even if your only authorship is for the compilation. The next question asks if you are the only author and owner of the work. Generally, you will check “Yes,” because you will be registering only the compilation authorship and any elements you created, and you won’t be listing any other authors. The last question asks if the work includes material only authored by the same persons. While this seems to be the same as the second question, this one is about what’s in the entire work, not just your authorship. So the answer is “No,” unless this project includes only elements you created.
• Next, to identify the “Type of Work,” check “Work of the Visual Arts.”
• When you get to the field for “Author,” you will see a checklist for indicating the nature of your authorship. Check “Other” and describe your graphic design there as “compilation authorship, namely, the selection and arrangement of _________”, and fill in the blank with descriptors for the elements included in your layout: e.g., “2-D Artwork” for illustrations, logos, and other graphic elements, ”Text,” “Photographs,” “Map,” “Animations,” “Sound Recordings” for music, “Audio-Visual Works” for videos or interactive games, etc. If you’ve also created any of those individual elements, check the appropriate boxes for those, or if there’s no box, add it as a separate description in “Other.” If you wrote original software code, include it here, call it a “Computer Program” and follow the special instructions for submitting appropriate deposit specimens for the code.
• When you get to the “Limitation of Claim” field, you will see the same checklists repeated twice. This is where you need to differentiate between elements you created and elements from your client or other sources. In the first column, “Material Excluded,” check the boxes that describe the elements from your client or other sources, and use “Other” to include any types of works that aren’t covered by the checklist. In the second column, “New Material Included,” repeat exactly what you did for the “Author” field. Again, you will need to use the “Other” box to describe your compilation authorship. Sometimes the same box will apply in both columns. For example, if you created some graphics and also incorporated some of your client’s pre-existing illustrations, check “2-D Artwork” in both columns.
ADDITIONAL ISSUES FOR WEBSITES
If you place content into a template instead of creating an original layout, your site will not be eligible for compilation copyright. Also, if you create a site using software like Adobe Muse, you won’t own copyright in the website code.
While the Copyright Office acknowledges the dynamic nature of websites, the registration process does not accommodate changing content. Your copyright registration for a website will cover only the content that you claimed as your authorship and that existed at the time you submitted the application. If you are registering your work on a client’s website, the static form of your compilation when you finished it should be sufficient, assuming your client will be responsible for creating and adding new content after that.
If you are registering your portfolio site, it’s best to adopt a regular timeline for adding new content, and file new registrations for each update. In your registrations, use the “Limitation of Claim / Material Excluded” field to indicate that some of your compilation authorship was preexisting, and use the “New Material Included” field to indicate what types of new content you have added. Alternatively, you can file your individual works separately, or as collections of individual works, apart from the compilation authorship. This might be a good strategy if the basic design of your website is not changing. See copyright.gov/circs/circ40.pdf for additional guidance.