Being a designer in the 21st century is a lot tougher than it was in earlier times. In less than 20 years we’ve seen our industry evolve rapidly and for the most part detrimentally. Once, smaller design studios held virtual regional monopolies to meet the needs of local small businesses, with larger businesses having their needs met by national design superstars. Today we all compete in a global marketplace populated by a mix of agencies, freelancers, and freelancers pretending to be agencies.
One of the biggest challenges for designers of the modern era is that they need to have a good understanding of the relevant laws that apply to this industry. Laws are becoming increasingly complex, licensing terms are getting stricter, and it’s more easy than ever to detect infringements.
But as a designer on your way up in the world, you probably don’t have time to undertake a full course in legal studies, nor is it very likely that you will have sufficient financial resources to hire a team of lawyers to constantly watch your six. So with that in mind, we’ve put together this brief guide to the most important legal matters that it would be good for a designer to know about.
Before we get started, a word of caution
Please be aware that we are not—surprise, surprise—lawyers ourselves, and what you’re about to read in the paragraphs that follow should not be regarded as a substitute for qualified legal advice. Furthermore, laws can vary greatly between different regions, and thus what might be valid in one territory is not necessarily valid in another.
Notwithstanding that, there is something called the Berne Convention that can be interpreted as a kind of guiding principle for international copyright law (but only in the 171 countries that are signatories to it). The Berne Convention was created in 1886, and over the next few decades, a growing number of countries became signatories. The United States was one of the last countries to join as a Berne Convention nation, waiting all of 113 years to put pen to paper. Consequently in most of the developed world, and a very large portion of the developing world, copyright is universally recognized as originating with the creator of a published work at the time of its creation, without the need for mandatory copyright registration.
For designers, the normal legal priorities include:
- Protecting your work from exploitation
- Ensuring that you are fairly compensated for your work
- Avoiding accidental violations of law
The bad news is that all of these things are actually not that easy to achieve. The approximately good news with regard to the last of them is that prosecutions are relatively rare occurrences even in the post-DMCA world, and accidental violations are very hard to prosecute anyway. Lack of intention is often a valid defense in a copyright lawsuit or criminal proceedings related to a copyright violation. So if you’ve slipped up and somebody bothers to pursue you all the way to court for it, you don’t necessarily need to lose any sleep worrying about it.
Not everything can be copyrighted
You may have gotten all excited about the fact that the Berne Convention promises that you’ll automatically get copyright the moment your create something, but that’s mostly because the Berne Convention was created in 1886 before all that greed and corruption had a chance to take hold of the corporate world.
Most large companies today, regardless of their financial wealth, are almost completely morally bankrupt. They’ll do just about anything to make a buck, and that’s because the laws have evolved in a way that compels them to do so, even if the individuals who are part of the whole would perhaps have pause for thought. It’s because companies have a fiduciary responsibility to their shareholders that supersedes moral responsibility, at least in theory.
Consequently the scope of the Berne Convention wasn’t broad enough to encompass the full spectrum of what might constitute a “work”. Significantly, for something to be a copyrightable work, it must be substantially original, unique, and uncommon. Thus it is easy for the author of a song to copyright the song, but impossible to copyright a single line of the song.
The shorter a written work is, the less likely it is to be substantially original and unique, and so copyright doesn’t work for things like titles and slogans. For things like that, we have trademark law, where a work doesn’t necessarily have to be unique, but simply needs to be used in a unique context.
The requirements for graphic design are the same. An illustration or photograph can be copyrighted, but it must be substantially unique. You could not, for example, copyright an illustration that featured nothing more than a plain blue square, because blue squares are not substantially unique or original.
So let’s look at each specific element in turn and step through the copyright that could be applied. We can start with color scheme of the logo, which is also used as the background for the page content.
As explained earlier, one solid block of color wouldn’t be sufficient to establish copyright. But what about the combination of these three colors in their exact ratios?
Actually it would be unlikely for this to stand up to either copyright protection or trademark protection because it simply isn’t original enough that somebody couldn’t use it without that being attributed to a coincidence. If a court were to uphold copyright for this combination of colors, it would create problems in the wider community, and so that would not credibly happen.
What if we added the signature letters onto the blocks?
This is more likely to be protected by copyright and trademark laws, but it’s not guaranteed. If somebody created a similar work, it could be argued that it was simply a coincidence. The court would need to look at several factors, including the degree of similarity (in the case of copyright) and whether it would lead to identity confusion or a deceptive implication of association (in the case of trademarks).
Working out exactly where the line is drawn on this kind of issue is not easy. Look at this for example:
Coca Cola has always made a big thing about their so-called “ribbon device” being a registered trademark of their company. Yet look what happens if you eliminate all the wording from both labels:
Subtract a bit of hue and lightness from the Coca Cola label:
And then flip the swoosh on the Pocari Sweat label, and we get this:
If the white portion of the flipped Pocari Sweat label were to be cropped and moved over to the Coca Cola label, it would fit snugly inside the white ribbon if positioned correctly. Think whatever you like about this, but someone in at least one of these companies must have decided that there is no risk of an association being incorrectly surmised from this similarity.
While we’re on this subject, consider the evolution of the Pepsi logo from its 1970s look to how it looks today. The bisecting white stripe through the tricolor disc has been reoriented and has become increasingly ribbon-like over the years. There must be some reason why fat white stripes are seen as the “in thing” by beverage manufacturers.
What we can learn from the Pocari Sweat example is that if we simply made a blue Coca Cola can, we’d clearly be infringing on both copyright and trademark. If we have some similarities but it’s different enough, then it’s probably going to be fine. The copyright holder or trademark owner might sue you anyway, just for the heck of it, but they’d be counting on intimidation in order to secure victory over you rather than having a valid case.
Returning to our original ICM example, let’s consider the logo in its entirety:
Now at last we have something clearly distinct from other designs and that has unique attributes that could unquestionably be protected by copyright and trademark laws. While similarities could exist on one or two factors, the probability of all factors being present as a result of coincidence would be microscopic.
If the colors were changed, that would not make any difference from a copyright infringement point of view.
Or if only the words were modified, that wouldn’t make a difference either.
The only difficulty is in terms of enforcement. Also the fact that some similarities are permitted can create problems too. For example, Thailand’s domestic cola product, EST, has a completely different label from Pepsi:
Yet the similarities of font and color are sufficient that many Thai people believe that they’re the same product. In fact EST is slightly sweeter and has less after-taste, but the company that makes it (Sermsuk Public Company) previously did bottle Pepsi under contract for 70 years from 1952 until 2012. Perception is everything, and EST is usually a fraction cheaper than Pepsi, which can be an important distinction in a developing economy. EST now exports to Malaysia and Indonesia, and it may not be long before it becomes a global presence.
So you can copyright and trademark things, but it doesn’t necessarily give you absolute protection, and it’s difficult to enforce. Some other examples:
- You can copyright a calendar design, but not the format of the calendar portion
- You can copyright a book and the cover design, but
- once the cover has been applied to the book, it does not have separate rights
- the book can have separate rights, and may be sold with a new cover design
- You can copyright the content of a book, but not the content style
- You can copyright building plans, architectural drawings, and even physical buildings
- You can’t copyright anything which is already in public use
- You can’t copyright anything which you didn’t create without permission from the creator
Getting paid for your designs
When you design anything for a specific client, on the understanding that they’re going to pay you before using the work, you absolutely have a right to collect your payment. There’s a catch, though, which is clients don’t always want to pay, and they could have a bit of an advantage because it’s highly unlikely you will have registered your copyright.
Wait…. what are we talking about here? Didn’t we just go over how the Berne Convention protects a copyright work from the moment of its creation? Well, yes indeed it does. You no longer have an obligation to register copyright in order to protect your interests in a work that you create, provided that you can prove you created it first. However when copyright isn’t registered, you can’t take any punitive action against somebody who violates the copyright. All you can do is order them to stop violating, and if they persist, then you may possibly have a claim against them.
If your copyright is registered, however, you gain the ability to sue for damages as well as simply obtaining a “cease and desist” order. If the violation was definitely intentional and exploitative, the court is likely to add punitive damages on top of actual damages.
Apart from copyright issues, you also should be considering having a contract for anything beyond the simplest jobs. This way if the client decides not to pay and uses the design, you have the option to sue for breach of contract and copyright infringement. But do remember that a contract works both ways. If you fail to deliver as promised, the client could sue you for breach of contract.
Staying out of trouble
There are many ways designers can bring trouble upon themselves, including:
- Software license violations
- Font license violations
- Breach of contract
- Creating an offensive design
With so many excellent free software applications available for designers, there is absolutely no excuse for software license violations. Either pay for your software or use the free ones. If you get caught using software that you haven’t paid for, you absolutely deserve the consequences.
Font licensing is a little more tricky. For one thing, many font creators don’t do the most sterling job of defining their license terms, and sometimes the demands they make are somewhat unreasonable. Nonetheless, if you want to use what they’ve created, you’ll have to abide by whatever conditions come with the use. What you need to do here is read the license terms very carefully before you commit to using a font to make sure you aren’t in danger of being sued.
Breach of contract was discussed earlier. Simply keep your promises. That applies even when you have not yet been paid, as long as the non-payment is not itself a breach of contract on the part of the client.
Finally we get to the real fun stuff, offensive designs. These are designs that create moral outrage, offend public sensitivity, or in some way violate the law. An example is a design that promotes racial or religious intolerance, or that discriminates against people on the basis of age, gender, or sexuality.
Depending on where you live and the nature of your employment, you may not be personally liable for an offensive design that you create on behalf of somebody else. There are vicarious liability laws that could push all the liability to your employer. If you’re self-employed and hire out to clients, you could be covered by vicarious liability if your business is structured as a limited liability company (but not if you’re a sole trader or in a partnership). This limits your legal liability to the amount of paid up capital in your business, which in some countries can be legally as low as $1.
No matter what, though, it’s never a good idea to intentionally create an offensive design, even when a client requests it. That’s just a foolish path to go down. Legal liability is only one consideration, but you also should think about the damage it can do to your reputation, and the possibility of attracting a personal vendetta against yourself.