8

Let's say Designer X worked full time for Company Y. While there, Designer X built an illustration to explain how Company Y's product works. Then, some years later after Designer X left Company Y, a third party requests permission to use said illustration in some educational material it plans to publish, and wishes to cite the author.

Who does the third party cite, Designer X or Company Y?

  • 1
    Why cant you cite as: "Designer X @ Company Y" Would also depend on the current relation of the designer with their company. – Mᴏɴᴋᴇʏ Jun 18 '15 at 18:51
  • 1
    Asking legal questions without being specific about the jurisdictions doesn't make sense. Different areas handle ownership differently. It's also likely that the contract that X has with Y specifies ownership. – Christian Jun 18 '15 at 23:03
9

Company Y.

Technically, they're the ones who signed the contracts with the third party, and the Designer X was "part" of company Y at the moment, unless designer X signed a contract with his employer company Y stating that he keeps the rights of his artworks.

But if company Y doesn't mind or upon agreement, designer X can be cited for his work. Or both designer X and company Y. Citing is not the same as claiming the rights but the company would be in full right to demand the name of designer X to not appear as creator of the artwork.

"If the work is for hire, "the employer or other person for whom the work was prepared is considered the author and owns the copyright." (The seminal case in this conversation is the Supreme Court case, Community for Non-Violence v. Reid (1989).)

Across architecture, industrial and graphic design, the policies remain generally consistent—the firm owns all employee intellectual property.

Source, other source and other source on permission.


Note for designers

It can be possible to keep these rights as author of your artwork but this needs to be done on a written contract when the designer is being hired. Usually companies and firms add a special clause about this or forbid the designer to cite his work for X amount of years. If it's only a matter of using the work for a portfolio, this can easily be negotiated and it's not the same as requiring the rights, but a permission to show your artwork.

Then again, this might not be possible if the firm has a special agreement about this with its own client!

Even freelancers have to be careful with this, some clients may require on the contract the same privileges as employers (work-for-hire.)


Note about license and copyright

The right to use (license) and intellectual property (copyright) are not the same things.

Non-exclusive License: Unless specified otherwise on a contract, when an artwork is ordered by and paid by a client, it's implied there is a non-exclusive right to use the artwork. This gives the company and the original author/creator a "shared" right to use the artwork. The designer can freely use the artwork for a portfolio and resell it if there's no copyright infringement (eg. brand), for example. The creator of the artwork is still the one who owns the intellectual property of the artwork but gives a permission to use the artwork to the person who pays for its creation. An example for this: Royalty-free stock pictures.

Exclusive License: It's a monopoly on the license and an exclusive permission to distribute the artwork but the intellectual property remains with the author/creator. This is usually negotiated on a period of time. An example for this: book publishing or a picture created for a specific event.

Copyright/trademark: This is the intellectual property and can be registered. The party owning this right can do anything they want with the artwork (resell, publish, distribute, resell, modify, etc.) When a designer work-for-hire or sells all the rights of his artwork, he doesn't own any rights or license on the artwork anymore and cannot re-use it in its current form. Rights stays with the creator or right holders up to 75 years after his death unless they are transferred to someone else. An example for this: a logo, a song or special attributes of a brand.

  • Well, no contracts were signed between Company Y and the third party. The third party essentially found the illustration after roaming the internet. They are requesting "copyright re-use permission", and are looking for "attribution text". What does this mean and where could I find said "text"? – Danl Jun 18 '15 at 16:32
  • 2
    I think they would need to ask the company Y then. Unless there is a signed paper stating the design's rights were transferred to the third party, the author (Y) remains the owner of the rights. So the third party needs to ask company Y for this! It's not because they paid for it that it belongs to them and there was no contract. For the copyright re-use permission, I think it's not transferring rights but a license (permission) to use the artwork. copyright.lib.utexas.edu/whoowns.html and this might interest you support.copyright.com/… – go-junta Jun 18 '15 at 16:55
  • I know this is not a politically correct answer but they could also use the artwork, cite the authors and wait for a "cease and desist" letter if the authors are not happy ;) At least the "source" is mentioned, it's not like copying the illustration for some other use or company. Where I could see some big issues is if the artwork is used on a magazine that is sold, for example or something that would require a commercial license. – go-junta Jun 18 '15 at 16:58
  • This could interest you (quote): "Must all nonexclusive licenses be in writing? No, but it is a good idea. An implied (i.e. unwritten) nonexclusive license is made when a work is created and delivered at the specific request of another person. A license is irrevocable (i.e. permanent) if the person requesting the work pays the creator. For example, there is likely an implied nonexclusive license if the Academy asks a presenter to prepare information for an upcoming conference and the presenter agrees...." aaos.org/member/mbrsvc/primer.asp – go-junta Jun 18 '15 at 17:17
  • ^ In other words, it's implied that the third party can use the artwork if it's not specified otherwise and if they paid for it. – go-junta Jun 18 '15 at 17:19
6

Company Y owns all the work Designer X did while employed.

Anything to be done with the image must seek permission from Company Y. The designer, as an employee, has no rights with respect to anything he/she created at Company Y.

Any attribution or reuse should reference Company Y because Designer X was in a work-for-hire position. In a work-for-hire situation the employee essentially does not exist as an entity. Only the company exists. Similar to how you wouldn't give credit to, or claim authorship belonged to your right arm because technically it held the pencil that wrote something. The arm, or in this case employee, is merely an extension of the whole (the employer). It is not an individual.

It would take a special, written, agreement for any employee to retain any rights or to claim authorship. It is common for companies to give the employee authorship. So, it's not unheard of. A company that publishes books often gives its employees authorship over the books, even though the company owns the rights to the book. But if no previous agreement has been made, years later, the employee often can not simply start claiming authorship when it was never before given. But then I am not an attorney.

This may be of interest to you: Can a co-founder/client claim ownership of designs if IP wasn't specifically signed over?

5

The terms 'owning' and 'authorship' do not really fit together.

The author has the authorship. Nobody else can ever have. A painting of Picasso will always remain a painting of Picasso. Owning is more about the rights to perform with the work of the author.

Depending on the legal framework the author can completely abandon or sell all his/her rights. But authorship can never be sold. Think about faking the authorship when writing a PhD thesis

  • 1
    True, but under a work-for-hire agreement the employer has both authorship and rights. Whether the employer wishes to credit the employee with anything is their choice. It's similar to a "ghost writer" agreement. The employer is seen as the author. – Scott Jun 18 '15 at 22:16
  • This might vary depending on the legal framework you apply. I guess you implicitly assume the US legal framework? EU differs from that. – V15I0N Jun 21 '15 at 13:09

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.