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I have a web design company. For artistic graphics I hire a Graphic Designer to do it for me. Obviously it hurts my business if it is known that I outsource so the designer uses an email address from my company and not her own Graphic Design company.

Is it normal to expect only my signature logo at the bottom of the graphics and there should be no reference to her own company at all? The same goes for her Graphic Design company, can I expect her not to link to work she does for my company on her portfolio?

Thanks

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4  
Why would the knowledge that you outsource 'obviously' hurt your business? I'd rather say that it speaks for your ability to identify your weaknesses and coöperate with others to make up for them. Credit where due. –  Bakabaka Jan 18 '13 at 14:51
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I'll second Bakabaka's question...why would working with a designer be hurting your business? This is fairly common. As for not letting her use the work she creates in her own portfolio, you can certainly ask, but most graphic designers would balk at that. Our portfolio is our livelihood. –  DA01 Jan 18 '13 at 16:51

4 Answers 4

My previous answer below is incorrect.

Assuming the work is made under the laws of the USA:

As Horatio points out in the comments, a work made for hire is not considered to be a work of visual art:

A work of visual art does not include

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

BUT according to Circular 9: Works Made for Hire, a work that you commissioned from an independant contractor is a work for hire only if it meets one of the 9 criteria listed in that circular and if you have a written agreement that it is a work made for hire. In your case, if you are just reselling a contractor's work as is, it is not considered work made for hire and you do not own the copyright by default.

The author of the work - your contractor - retains the copyrights for the work unless he transfers them to you, so you must have a separate clause in your contract/purchase agreement requiring the contractor to explicitely transfer the copyrights to you.

However, as you might have noticed above, drawings and graphics of commercial nature are not considered "works of visual art", but instead fall under the category of "Pictorial, graphic, and sculptural works", which are also protected by copyright but in the US do not provide additionnal moral rights such as the right to claim authorship.

If my understanding of this is correct this time around, US copyright law does not provide moral rights to the author of a work of pictorial, graphic and sculptural art, which means no one gets the right to attribution and you do not have to formally acknowledge the author.

If you are outside of the USA, things are different when it comes to moral rights so you have to check what your country's copyright. For instance, in France, the author retains moral rights (attribution, etc) forever and can not transfer these to you.


[My previous answer]

No, you can't:

According to article § 106A . Rights of certain authors to attribution and integrity,

(a)...the author of a work of visual art shall have the right to claim authorship of that work, and...

And

(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work. ...

She has the right to claim authorship for her designs, unless she explicitly waives this right for each design in writing.

You do not however have to provide a link to her website or even mention her company name. These authorship rights belong to the actual author of the work, not the company for which the work was done.

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2  
Not so fast: look for "work made for hire" in that document. –  horatio May 16 '13 at 14:41
    
@horatio I just fixed my answer. After further research, it looks like the situation is more complex than I thought it was. –  Sylverdrag Dec 6 '13 at 4:57

Don't try to trick your clients.

Deception is for governments and big corporations.

If you are providing a service to your clients and the freelancer merely augments that service then you have nothing to hide. I tell my clients up front that I work with sub-contractors who are among the best talent available: developers, writers, photographers, even other designers.

If you are doing nothing but collecting the mark-up, your business model is doomed. Nobody wants to work with middle men any more.

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I was once a developer at the end of a chain like you describe. My client had been subcontracted by a company that wasn't telling the big client they were working for they were subcontracting the work, and my client didn't tell them they were subcontracting to me.

Here's what happened: I had been told the whole thing had to be finished in six weeks. The money was ok for six weeks, but not outstanding. I took it anyway, because it just happened to be something I really was looking to do at the time.

My client's client never once met one of their deliverable deadlines. So, when it came to date I had originally expected to be paid, we were only halfway through with the project. I did get paid though, as I wouldn't upload something that they really wanted to show the end client.

When I was finished with my part of the project, I asked them to verify that it worked to the end client's satisfaction, and I went and got a full-time contracting job elsewhere. To this day, I have no idea if they made any effort to get the interim client or the end client to test anything.

A couple of months after that, they came back and told me that they had found some bugs. I frankly didn't have the time to sell, and I sent an email reiterating that I'd asked them to make sure the client was happy before I walked away. Believe it or not, they forwarded that email to the the interim client, essentially passing the blame on to them (where I'd only said that I'd made the request of my client). By the end of this, none of us looked very good.

All of this is a long-winded way of saying that if you don't tell the client that you're subcontracting

  1. You can't tell them that your contractor needs to be paid by the 1st, whether they provided the deliverables she needs to finish the work she was supposed to have done by the 15th or not. But you better be prepared to cough up that money, since she has to eat and probably turned down other work to take the work for you.
  2. If something goes wrong and the project stretches beyond the planned time, you need to be able to go to the client and get them to provide an incentive for the contractor to stick around. You don't have the flexibility to ask someone else to put their life on hold for a stop-start project the way you personally can, and they have every right to wander off and get other work while you're not directly paying them.
  3. If the contractor completely screws the pooch, you may not be able to 100% avoid taking a financial hit or a hit to your reputation, but most clients are going to be a little more forgiving of "you were unwise in hiring a contractor" than "you just do crap work."
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If you need intermediate payments, you can require them to be included in the contract - you do not have to justify your conditions. Same goes for #2. As for #3, you are the one selling the service. No matter who does the job, you are ultimately responsible for the quality of the products and services you sell. –  Sylverdrag Jan 20 '13 at 16:18

I can understand the desire to keep the designer somewhat transparent. Especially if you are concerned your clients may simply contact the designer directly in the future and simply "cut you out of the loop", for lack of a better phrase. However, an ethical designer isn't really looking to do that if you have a good relationship with them.

It's unlikely any designer will be concerned with remaining transparent unless you've specifically mentioned it. This is something which needs to be ironed out via contract with you and the designer. It is not unheard of for a designer to sign a non-disclosure agreement or non-compete agreement in order to ensure your clients remain your clients.

I disagree with some of your reasoning "it hurts my business if it is known that I outsource" is entirely untrue. Okay, well, it may be true if you are simply using services such as guru.com or elance.com. It can cause the perception of your business to be one of a "contractor" or "organiser" as opposed to an actual service provider. You would be better off finding a stable of a few designers unrelated to crowd sourcing sites and continue to use those same designers.

As for restricting a designer's portfolio... that's a designer's bread and butter, good luck trying to pry that out of their hands. I'm unaware of any designer which would freely give up rights to include content in a portfolio unless compensation was made for that loss. I, myself, have a client or two which prohibit disclosure of documents due to proprietary information. However, that does not prohibit me from removing any proprietary information and still showing off the design. If you want to prevent any and all design being included in a portfolio, that again needs to be ironed out in advance via a contract.

If you want to outright own everything a designer does for you... you need to hire one under a work-for-hire agreement. That means you provide tools, equipment, projects, and direction just as a standard employer would. Independent contractors are seeking to grow their business just as you are and will be less likely to remain completely transparent.

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