Graphic design legal issues

Safety and insurance

14 March 2016

Graphic design is all about coming up with fresh, inspiring and beautifully executed ideas. But while being a creative powerhouse comes with the territory, it's just as important that designers know all about the legislation surrounding their business.

To help you stay on the right side of the law, here's a quick refresher on the most common legal issues graphic designers need to keep in mind when tackling a brief.

 

Image copyright

In the eyes of the law and the Intellectual Property Office (PDF), "photographs, illustrations and other images will generally be protected by copyright as artistic works."

In other words, if you find an image on the internet, in print or anywhere else, even with no supporting information about its copyright status, you’re required to assume it has copyright and ask for permission before you use it – either as a single image or as part of a larger work.

Usually, the copyright belongs to the person who creates the image, unless it was created for an employer, in which case the employer owns it. However, if a design includes images of another person, you may need their written permission before using it in a promotional campaign.

Generally, copyright on images lasts for the life of the creator plus 70 years. During that time, the owner may ‘license’ an image (let someone use it) or ‘assign’ it (sell or give away the copyright).

 

What happens if you use copyright protected images? 

 

Intellectual Property (IP)

Anything original that someone creates using their own mind is their intellectual property.  Intellectual property rights allow you to make money from the intellectual property you own. Intellectual property can have more than one owner and it can be bought and sold to individuals or businesses. 

You own intellectual property if you:

  • created it
  • bought it from the creator or previous owner
  • have a brand that could be a trademark (e.g. a well-known product name)  

 

Types of Intellectual Property (IP)

Automatic protection

  • Copyright

Protects your work and stops others from using it without your knowledge or permission. You automatically get copyright protection when you create something original such as an illustration or a photograph. You can mark your work with a ©, your name and the year you created it. However, doing this won’t affect the level of protection you have.

  • Design right

Automatically protects designs to prevent someone from copying you 10 years after it was sold or 15 years after it was created (whichever is earliest). Design rights only apply to the shape or configuration of 3D objects; you must register to protect 2D designs like graphics or textiles.

Protection you need to apply for

  • Trademark

Registering your trade mark can help to protect your brand. For example, you can trade mark the name of a product or service. You can use the ® to show that you’ve got the trade mark and you’ll be able to take legal action against anyone who tries to use your brand without your permission.

  • Registered designs

You can register the look of something you’ve designed to stop people copying or stealing it. The ‘look’ of a design is its appearance, physical shape, configuration and decoration. Shapes of objects might already be automatically protected by design right, but registering it will give you further protection.

  • Patents

To be granted a patent, your invention must be completely new (not a modification of something that already exists) and it must be something that can be made or used. Patents are notoriously expensive and difficult to get, so you’ll need to think carefully about whether you really need one or not.

 

Logos

Logos have long been a source of confusion between graphic designers and their clients. That’s why it’s important for designers to make the details of logo ownership explicitly clear in their contracts. Many designers even have specific logo design ownership clauses in their contracts.

According to the Intellectual Property Act (2014), designers own copyright of logo designs unless a contract states otherwise. However, a court case in 2015 ruled in the client’s favour, finding that an implied ownership of designs fell with the client because it wasn’t explicitly written into the contract that they would stay with the designer.

Logo ownership: the client or the designer?

Unlike other areas of graphic and web design, it’s common for the client to have ownership of the logo you design for them.

A logo design is such an essential part of the day-to-say functioning of a business that it’s easier for clients to have all the legal rights of ownership. For example, a logo is frequently used in marketing materials, business stationary etc. that clients usually prefer to own the rights to avoid copyright violation.

Also, business owners want to protect their brand identity and logos are a big part of that. If the designer owns the rights, a business can’t register the logo design under the Intellectual Property Rights which can cause a number of legal issues further down the line for business owners.   

 

Font licensing

These are a whole different ball game, so let’s start with the basics: while you're licensed to use preloaded fonts in programs like Photoshop, this isn't the same as owning them. Most licenses allow designers to use the fonts to create designs and documents on their computer, but not necessarily to ‘embed’ them or, in other words, share the font with unlicensed users.

Here are the four permission levels you’re likely to encounter, and what they mean in practice:

  1. ‘No embedding’ – you can’t embed these fonts in a digital document.
  2. ‘Preview and print’ – you can embed the fonts in a digital document (for example a PDF), but only to be viewed on a screen or printout.
  3. ‘Editable’ – you can embed fonts in a digital document, and it's fine for the recipient to view, print or edit the text.
  4. ‘Installable’ – the recipient can install the font to create completely new documents.

In web design, there are a few common approaches to sharing and rendering fonts:

  1. ‘Web-safe’ fonts are a small selection of fonts commonly found across both Apple and Windows computers, typically used by designers to ensure that text renders as well as possible in various web browsers. The operating system licence governs these fonts.
  2. ‘Rasterised’ fonts are turned into images and therefore not embedded.
  3. ‘CSS @font-face’ instructs the browser to temporarily download the font onto a user’s computer, and these fonts have their own licence terms.
  4. Adobe Typekit gives subscribers access to a catalogue of fonts and has its own terms of use.

 

Creative Commons

Creative Commons (CC) licences automatically give people the right to use, modify or share content. There are various degrees of permissions:

  • CC0 is public domain, meaning the content is anyone’s to use, modify and share – no strings attached.
  • CC BY (CC Attribution) is anyone’s to share, use and modify, if you credit the original creator.
  • CC BY-SA (CC Attribution-ShareAlike) is as above, but requires you to share any modifications under the same licence.
  • CC BY-ND (CC Attribution-NoDerivatives) allows credited use and sharing, but not modification.
  • CC BY-NC (CC Attribution-NonCommercial) allows credited use, sharing and modification – but not for profit.
  • CC BY-NC-SA (CC Attribution-NonCommercial-ShareAlike) is as above, but you must share any modifications under the same licence.
  • CC BY-NC-ND (CC Attribution-NonCommercial-NoDerivatives) allows credited sharing and usage, but not modification or sale.

If you want to register any of your work under Creative Commons, or find out more about doing so, visit creativecommons.org.

 

‘Fair use’

Under US and UK law, the ‘fair use’ principle exists to prevent copyright law from hindering free speech, freedom of the press, and to avoid excessive legal action for accidental or minor breaches of copyright. It allows content creators (including designers) to include quotes and excerpts from published works if they credit the author and source, and justify the extent of its use.

Fair use is usually applied to news reporting, incidental references and private or educational use. Outside of these cases, it’s wise to seek the owner’s permission.

 

Client obligations

Graphic designers (and indeed all other small businesses) are legally required to provide their clients with adequate services. Where work falls below the standards expected, a client may choose to bring a claim against the supplier – especially where the client has suffered financial loss.

Disputes between graphic design businesses and clients often arise from unintentional copyright violations. When a designer fails to obtain the correct licence, they're responsible for the mistake – and given the intricate nature of image and font permissions, it's hardly surprising that mistakes do happen.

*10% of professional customers paid this or less for business insurance between August 2015 and January 2016

 

Graphic design contracts

The importance of ‘having things in writing’ for freelancers is especially true for graphic designers. A good graphic design contract will ensure your client knows exactly what to expect when they’re working with you.

How to prepare a graphic design contract

As a freelancer, there isn’t a one-size-fits-all approach to a ‘graphic design contract’. However, most graphic designers will use a service agreement contract between them and their client. A service agreement contract will set out your terms and conditions, quality expectations, deadlines and payment arrangements. 

Set out your graphic design terms and conditions

In your graphic design contract, you’ll want to confirm your terms and conditions in writing ahead of starting work for any client. Setting out clear boundaries means your clients will understand exactly what you’ll be doing and when you’ll be doing it. Setting out these terms clearly will help to avoid help avoid any disputes over delivery times or payment terms. 

Expenses and cancellation fees

As well as the more standard terms and conditions, you might also want to consider detailing the expenses and additional costs you expect your client to cover during the time you’re working with them. These additional costs could include things like travel expenses for meetings or overnight accommodation costs.  By outlining the exact terms of any extra fees or expenses, both you and your client will understand exactly how much everything is going to cost before any work is done, meaning you can focus on the job itself and building a good relationship with your client.

You’ll also want to agree a cancellation fee (if you have one at all) as well as information about the terms of late payments.

Graphic design contract checklist

  • Payment terms: how much, when and the method you want to be paid, late payment terms.
  • Delivery details: when and how you will deliver work
  • Expenses: travel to meetings, hotel accommodation etc.
  • Retention of title: confirm you own the goods until they’re paid for
  • Retention of copyright
  • Confidentiality: what information, if any, can you disclose and when
  • Void contracts: what circumstances would breach the contract and become void
  • Additional costs: g. who pays for postage of materials, packaging etc.