Questions
Answers
Opinions
Q: Can you use other’s designs in a portfolio without infringing artist’s rights?
A: Although it helps to ask first, yes as long as you are not making a profit from someone else’s designs or claiming them as your own, it is legal to use in a portfolio.
O: I agree with this. Our book defines copyright infringement as follows:
“Any unauthorized use of a copyrighted work that violates the copyright owner’s exclusive rights in the work constitutes an infringement. Common examples of infringement are:
• Making unauthorized copies of an original work for commercial purposes
• Using a composer’s tune in a song with different words
• Including in a computer program important software subroutines authored by someone else
• Adapting another’s work in one medium (such as a book or play) for use in another medium (such as a movie or CD-ROM), and
• Outright plagiarism of somebody else’s prior original copyrighted work. CP&T, pg. 220, Stim, 9th Ed.
I think the key is to acknowledge the author or owner of the work when using it in your portfolio.
Q: Can you incorporate a public domain into a specialized design and copyright it?
A: Yes, but only the specialized design portion will be copyrighted.
O: Our book defines public domain as follows:
“Any work of authorship that is not protected under copyright law is said to fill within the public domain. This means that anyone can use the work without obtaining permission from the author or the author’s heirs. “ CP&T, pg. 284, Stim, 9th Ed.
This answer makes sense because you can’t copyright many elements to a design because they have always been there, but you can copyright a new “arrangement” of said designs to include new additions to the basic elements.
Q: What rights do I retain when using company software?
A: The short answer was it depends on what kind of employment agreements, etc. you may have signed with the company.
O: If you have signed an agreement with your employer that consigns any work you do to the company, than any designs created with their software becomes their property, especially if it was created with earning a profit in mind. Our book covered only inventions stating:
“The only inventions an employee can’t be required to assign to the employer are true independent inventions – those that are developed completely without company resources and that don’t relate to the employee’s work or the employer’s current business or anticipated future business.” CP&T, pg. 108, Stim, 9th Ed.
Q: In a series, do you copyright individually or in a series?
A: Unless the series, such as photographs, architectural designs, etc., are submitted as a compilation piece, a copyright is granted for each single piece of work.
O: My attorney was not absolutely definitive on this answer. He was referring to architectural designs of buildings that had come under litigation. It would make sense though, that unless it is a book of pictures, or drawings or something similar that you would have to copyright an individual design such as a logo. Our book defines an “architectural work” under the COPYRIGHT ACT OF 1976 as follows:
“An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” CP&T, pg. 319, Stim, 9th Ed.
Q: What is the average price to keep an attorney on retainer?
A: My attorney said that he works by the hour, whether on retainer or not, which is three hundred dollars an hour. He also said it could vary by attorney, which is why some companies have in-house legal departments.
O: As a small operator at this time, I would have to agree with paying by the hour because I would not want to pay someone for a year’s worth of work to only use them once or twice.
Q: If you do a design, etc. for a client and are not paid for it, does the actual design belong to you or the client?
A: This would depend on who actually created the design, you as a designer, or was it a finished design which the client wanted duplicated into a different medium. If it is something you created, whether paid for or not, the design belongs to you and the client would have to get authorized use from you.
O: I feel my creations should belong to me. Many times, we have had clients come to us with no idea at all of what they want and will tell us to just do what we think looks good. We charge for artwork as well as material items we sell so I would consider this as falling under the artwork category if it is my design. Our book defines the copyright claimant as follows:
“A copyright claimant is the party considered to be the basic owner of the copyright in a work being registered with the U.S. Copyright Office. The copyright claimant may be any of the following:
• the actual author of the work
• an employer (also considered the actual author) whose employee created the work in the scope of employment
• a party who commissioned a work made for hire, as defined in the Copyright Act (also considered the actual author)
• a party to whom all rights in a work have been assigned, or
• a party who had come to own all of the exclusive rights that make up the copyright.” CP&T, pg. 219, Stim, 9th Ed.
Q: If you do designs and aren’t paid, what recourse do you have?
A: You can take them to court, but consider which would be more expensive, the court costs or the time and materials you have invested.
O: Sometimes the cost of getting what is owed to you is more expensive than the time you have already lost. Attorneys and court proceedings can be very expensive to even initiate and even if you have the money to follow through to the end, you must consider whether or not the outcome will even benefit you. For instance, say it is an expensive venture that you spent six months on, even if you win will the other person claim bankruptcy and leave you with all the debts anyway?
Q: Do salaried employees have any rights to finished products?
A: Apart from employment variances, such as stock options that some companies offer, no, the employee would not have any rights to benefit from a finished product.
O: Unless you own part of the company, if you are working for someone else with the understanding and maybe even a written agreement stating that your work belongs to them, you should not expect to be paid twice, once for the work you do and again for the ultimate outcome of the work you were hired for.
Q: If I rough out a design on school/company software but finish on my own professional software at what point does it become a creation and what are my rights?
A: You would have complete rights to the finished design. Your employer, however, may have rights to the initial drafts, if done on company time with the understanding that what you create belongs to them. The company may then come up with a comparable idea or design from your drafts, as long as they don’t infringe on your finished design.
O: I don’t particularly agree with this since the book says that:
“A creative work is protected by copyright the moment the work assumes a tangible form – which in copyright circles is referred to as “fixed in a tangible medium of expression.” CP&T, pg. 186, Stim, 9th Ed.
I feel that the design would not be considered tangible until finished, therefore my employer should have no rights to the idea.
Q: Can you use designs/images that have no release documentation into a portfolio or a book?
A: This would depend on whether or not release was sought, and in a book especially, every effort should be made to do so. If this cannot be achieved, then compensation may have to be given at a later date from any profits made from the book if a claim is made against you. A portfolio is different since it is not done for financial gain or reproduced for this intention.
O: I felt like the attorney’s assessment of this was fair. He did explain that the law is constantly changing and depends many times on a judge or jury’s discretion when interpreting the law.
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