As a designer, you will likely receive automatic copyright protection for various aspects of your work as soon as it is created. Each country has their own copyright laws, and this will determine how your copyright protections operate and can be enforced. This article provides tips on how to work on a design theme without infringing on someone else’s copyright. While this article is general in nature, it draws upon Australian copyright principles under the Copyright Act 1968 (Cth).
When working on a design theme, you may draw inspiration from other designs. It can be useful to see how other designers have approached a similar job in the past. However, understanding the limits of re-appropriating other people’s work is essential for avoiding copyright infringement. Regardless of whether you are designing a website, logo, business card, flyer or brochure, it is important to identify the elements in a piece of work that copyright protects so that you do not unlawfully use them in your design. This will also help you identify when someone has infringed your copyright.
What does copyright law protect in Australia?
Copyright is a form of intellectual property that comes into operation when someone has created an original work. Original work includes photographs, paintings, drawings, written pieces, films and television broadcasts. Copyright law provides you with economic and moral rights to your work. Economic rights allow you to commercialise your intellectual property. This can be achieved through publishing, copying or communicating (e.g. making available online) the work. Moral rights protect the integrity of your work when others use it and require that you are correctly attributed as the creator.
A designer can “assign” (i.e. transfer) their economic rights to their client or another third party. Alternatively, the designer may “license” their economic rights on certain conditions. For example, a licence may allow the client to publish the work in a certain country. However, the designer will remain the copyright owner. The situation is different when it comes to moral rights. In Australia, a copyright owner cannot assign or license moral rights to their work.
As a general rule, copyright protection comes into force once work is created rather than at the idea stage. If you tell someone your design theme idea and they bring it to life first, they will not have infringed your copyright. A useful way to protect an idea is through a Confidentiality Agreement. This agreement creates a contractual obligation that the party receiving the confidential information will not, subject to agreed conditions, disclose it to a third party.
Unlike other forms of intellectual property such as trade marks, there is no formal registration process for copyright protection in Australia. Copyright either protects the work, or it doesn’t. However, it is important to confirm whether your country requires registration, as copyright is not an automatic protection in all places around the world. Despite widespread belief, there is also no legal requirement to use the © symbol on copyright protected work. However, the copyright symbol can deter potential ‘infringers’ as it puts them on notice that you, the owner of the work, have copyright.
Copyright protection will attach to the below-listed categories in Australia (this list is not exhaustive):
- Literary works: these include text or writing based material. Copyright will not protect single words, names, slogans or titles;
- Artistic works: these include photographs, paintings, drawings and business logos;
- Sound recordings: these include the mechanical record of sounds, including digital formats. A sound recording should be distinguished from the underlying musical work, which can have a different owner;
- Cinematographic films: a film is an aggregate of the visual images (including the sound) that allows the film to be shown as a moving image. This category has also included computer and video games; and
- Broadcasts: these include television and radio broadcasts.
Can I incorporate elements of someone else’s design into my own work?
As you can see from the above categories, copyright protection will cover various elements of your design. Consider a design that you are currently working on for a client. Does it involve more than one category covered by copyright? More often than not, the answer will be yes.
For example, a website for your client’s business might include:
- photographs;
- a logo or other artistic work;
- text;
- sound recordings; and
- a cinematographic film.
Where you are not the creator of these works, you will need permission to use them. You should, therefore, seek the consent of the photographer, for example, if you wish to use their photograph in a design theme for a client. The photographer can assign or license the copyright in their photographs to you. This is how you lawfully seek consent. Using the photograph without the permission of the photographer would constitute copyright infringement. This rule extends to any element that a third party owns and that you wish to incorporate into your design theme.
What happens if I accidentally infringe someone’s copyright?
If you identify that you have unintentionally infringed another person’s copyright(s), we recommend that you discontinue using the work as soon as you become aware.
It is important to remember that a copyright owner can deny others from using their original work if they wish. There is no legal right for you to continue using the work without the owner’s permission.
Exceptions to copyright infringement
We are going to look into the “fair dealing” exception as it is one of the relevant exceptions for designers. Under this exception, you can use copyright protected work in your design theme without permission provided you use it for the following purposes:
- Research or study;
- Criticism or review;
- Reporting of news; or
- Parody or satire.
One of the fair dealing exceptions which can apply to designers is using work for parody or satire. While Australian law allows designers to use copyright protected work for this purpose, it must be used fairly. The courts are still to consider what constitutes fair use, but the following factors provide guidance:
- How much material is used;
- The context of the satire or parody; and
- Whether the owner would license their material for this use.
Key tips for avoiding copyright infringement
LegalVision recommends designers take the following steps to ensure they avoid copyright infringement:
- Identify the elements in a piece of work that copyright protects;
- Seek permission to use any work of a third party which is copyright protected. This can include sound recordings for a website, photographs for a flyer, or text for your brochure. You should contact an intellectual property lawyer qualified in your country if you are unsure whether something is protected by copyright; and
- Read and understand any copyright licence that you have been provided to avoid breaching the licence. For example, if a photographer has licensed their photographs for non-commercial use, you cannot use them as part of your chargeable client work as this would be a breach of the licence. A non-commercial use could be to share a photograph on social media with your friends and family.
Key takeaways
Copyright is a valuable asset in the design industry as it allows designers to protect and monetise their creativity. In many ways, your clients are paying you to develop work which attracts various forms of copyright protection. When you assign or license your copyright to your client, this becomes a valuable business asset to them. It is therefore important that you do not infringe on another party’s copyright when producing work for your clients. This will not only impact their ability to use the work in the intended way, but it also can make you vulnerable to legal actions for copyright infringement.
If you have any questions about how to avoid copyright infringement in Australia, get in touch with LegalVision’s Intellectual Property Lawyers today on 1300 544 755.
You can also check out DesignCrowd’s FAQ section for more information on how your designs will be used and who owns your designs.
This is a guest post by Aya Lewih. Ayatalla is a Lawyer at LegalVision and specialises in Intellectual Property. Before joining LegalVision, Ayatalla worked at The Kraft Heinz Company in the legal team, working closely with the General Counsel, and the supply chain team. Ayatalla has a background and strong interest in intellectual property, consumer law and information technology law.
Want more?
It’s always important to use creative assets correctly and to protect your own designs. Check out these articles for more information:
3 Good Reasons You Should be Protecting Your Logo With A Trademark
How to Protect Your Logo To Ensure It’s Really Yours
How to Avoid Using Generic Logo Designs
Written by DesignCrowd on Thursday, August 10, 2017
DesignCrowd is an online marketplace providing logo, website, print and graphic design services by providing access to freelance graphic designers and design studios around the world.