Unless the artist has signed a written document stating that you are the owner of copyright, the artist is the owner of copyright, but you would usually be entitled to use the work for the purposes for which it was created. If you want to use the work for another purpose, you will probably need the artist’s permission.
Generally, you will need express or implied permission to copy someone else’s work even if you are making changes or additions to it (such as changing the colours). If you can put two works side by side and still identify important parts which have been copied, it is likely that you need permission.
As noted above, a freelance artist or designer is usually the first owner of copyright. Generally, the client will have the right to use the design for the purpose for which it was commissioned. It is a good idea to have a written agreement which sets out the client’s rights. For further information, see our information sheets Assigning and licensing rights and Graphic designers. If a drawing represents the pattern, ornamentation or shape of a functional article (such as a chair), it may be registrable as a design under the Designs Act The client may be entitled to register the drawing as a design, but will generally need the designer’s consent to do so. Note that your copyright rights may be limited by the Designs Act.
People often ask how they prove that a design is their own when there are similarities in most designs. There are stock elements to many designs which are unlikely to be protected by copyright. For example, a design for an average T-shirt would not be protected by copyright. A work must be “original” to be protected by copyright. A court may be asked to determine a dispute about who owns a design when it cannot be resolved by negotiation. The court considers all the evidence, which will include evidence from the designer as to how the design was created and perhaps evidence such as drafts of the design and sketches made at the time the design was created. It is therefore a good idea to keep copies of drafts and working drawings.
A graphic artist will usually be under an express or implied contractual obligation to provide designs that are fit for the purposes for which they are intended. However, how this general statement applies where there are trade mark or trade practices issues – and particularly those that are unknown to the artist – will need to be assessed by reference to all the circumstances (including the particular wording of any written agreement).
Generally, graphic artists should be willing to undertake not to provide work that infringes someone else’s copyright. They should, however, be wary of either offering or agreeing to provide designs that will not infringe any third-party rights such as trade marks or rights under trade practices laws. These areas of law may not only be complex, but they may relate to designs of which the graphic artist could not reasonably be aware.
In most cases, a client will be better able to assess whether or not a particular design may raise such issues (because, for example, they are aware of how competitors are marketing themselves) and a client will be better able to bear relevant risks.
To avoid problems, graphic artists should ensure not only that they have clear written agreements with clients, but that these agreements specifically deal with obligations in relation to trade mark and trade practices issues in a way that protects them from unforeseen consequences. It is best to get a lawyer with expertise in advising graphic artists to draft a template agreement you can use with clients.
If there is a dispute about who created something, or who owns copyright in it, which cannot be resolved by negotiation, it may need to be resolved by a court. A court considers all the relevant evidence. The most important is usually the oral evidence of the parties to the dispute and the evidence of any witnesses. Other evidence may include a copy of any agreement (between a graphic designer and his or her client, for example), and drafts or digital files. A copyright notice on the work may indicate who claims ownership, but it is not necessarily conclusive.