As a creative, you may not think about copyrighting a graphic design—but to receive legal protection, it might be a good idea to consider how to register your work.
Eligibility for copyright protection
To be eligible for copyright protection, “a graphic design must be an original work of authorship, independently created by a human author, and possessing at least some minimal degree of creativity," says Joseph Mandour, a Los Angeles-based intellectual property attorney.
For most artists, copyright protection begins the moment “the author writes her poem on a piece of paper, a songwriter pens his or her music in lyric form, or in the case of graphic design, when the designer creates a logo in Illustrator or Photoshop or other electronic form," says Flavia Campbell, a Phoenix-based intellectual property attorney. Protection begins as soon as the work is fixed in tangible form.
Requirements for copyright protection
According to Campbell, to receive copyright protection, a graphic design must be:
- An original work of authorship
- Fixed in tangible form
"Original" is defined as having a minimal degree of creativity. “It is a low standard and it is sufficient for the work to have just a spark of creativity," Campbell says. “Work that does not meet the minimum degree of creativity does not merit copyright protection."
For example, a simple heart shape without any embellishments may not be original or creative enough to receive copyright protection.
Fixation is “satisfied when the work is put in the medium in which it can be perceived, reproduced, or otherwise communicated," Campbell says. It can be fixed on a physical object like paper, a sign, or an article of clothing, or in a digital medium.
“Graphic designs would be protected as a work of visual arts, which include two-dimensional and three-dimensional works of fine, graphic, and applied art," she says.
Rights protected with a copyright registration
A graphic design is afforded several rights as a result of copyright registration. The owner or a person authorized by the owner can reproduce the work via copies; prepare derivative works; distribute copies to the public by sale, lease, or rental; and display or perform the work publicly.
In general, the copyright belongs to the owner of the graphic design. One key exception is “works made for hire." Campbell explains that “a work made for hire is one either prepared by an employee within the scope of employment or specially ordered or commissioned for use as a contribution to a collective work, such as part of a motion picture or other audiovisual work, translation, supplementary work, compilation, instructional text, test, answer material for a test, or atlas, if the parties expressly agree in writing."
Campbell illustrates how this works through an example. “A customer hires a web designer to create a website. Even though the work was 'commissioned,' a website likely does not qualify as a work made for hire, and therefore, absent a document expressly stating that the customer will own the copyright for the website, the default rule is that the copyright remains with the author, i.e., the web designer," she says.
Advantages of registering a graphic design
Even though copyright registration is not required for a copyright to exist, it is recommended for a number of reasons, including:
- Registration provides a certificate issued by the U.S. Copyright Office and creates a public record of the copyright in the work.
- If the copyright owner wants to bring an action for copyright infringement, registration is required.
- In a copyright infringement action, if the work is registered, the person suing is eligible for an award of damages, attorney fees, and costs. The work must be registered before infringement action or within three months after publication of the work.
- Registration permits a copyright owner to record their copyright with the U.S. Customs and Border Protection.
Registration procedure and copyright fees
The registration procedure includes filing an application form with the U.S. Copyright Office, with different forms based on the type of the work, such as literary works, visual works, or sound recordings. You then deposit copies of the work being registered. The format of the deposit varies depending on the type of work. Finally, you submit payment of the copyright fees.
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