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Who Owns the Copyright?

May 19, 2008
By

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You asked your legal, copyright, and trademark questions, and Jean has answered! All questions are culled from the comments section attached to the original ‘Ask Jean’ post. We invite you to ask more questions

Kris says:

Hi,
I have a small company and I hired a freelance graphic designer to create logo, artwork and other items for my company. I paid her fully for the work she has done. There was no written contract. I have now hired a full time graphic designer and I have asked the freelance graphic designer to give me the original artwork so that I can have the in house graphic designer use it. She refused to turn over the original files (7 years worth of work for which she was paid very well). A few days later she called me and said she would turn over the files for a fee (substantial I might add). I told her that the logo’s belonged to my company and she was already paid for her work. Do I have any legal rights to obtain these from her?
Thanks,
Kris

Dear Kris,
Unfortunately, no. This is a misconception many hiring parties fall victim to—I paid for it, I own it. In the case of copyrightable work, this is not true. The creator of artwork, in this case, a logo, owns the copyright in it unless and until she transfers it in writing. What you paid for was the right to use the artwork as your logo, but not for the copyright. To obtain those rights, you have to have a document which makes it either work for hire or which transfers all right, title and interest in the work. The files belong to her because you did not have a written agreement that says otherwise. My advice is to negotiate a price for the digital files and a full transfer of rights and chalk it up to an expensive lesson learned.
Best,
Jean

—-

Stephen says:

Hi Jean,
Thanks for keeping such a great resource up to date! My question relates to work I did for a client in late ‘05-’07. During this time I performed a number of strategic and creative (i.e. product naming and initial logo mocks which were communicated to client via email). Since, the relationship has gone sour. The former client filed federal trademark registration a week after our name suggestion and it is currently published for opposition for the past year (another brand is opposing). The product has just launched. My question is, does my firm own the copyright or common law trademark to the name? What legal rights does that give us over the usage of the name, if any?
Thanks,
Stephen

Dear Stephen,
Like the question above, a lot depends on whether you have an agreement with your former client in writing which transfers the rights in what you created to the client. You don’t own any trademark rights in the logo you created. Trademark rights are created from the use of a mark in connection with the sale of goods or services. But, you do own the copyright in the image if there was no transfer in writing to the client.
Best
Jean

28 Responses to Who Owns the Copyright?

  1. Patrick on December 17, 2008 at 2:49 pm

    I would like to ask a question but I’m not sure if this is the correct spot to put it in or not? Can someone help me out? I have a legal issue regarding copyright that I desperately need answered.

    Thank you.

  2. Jean Perwin on December 17, 2008 at 2:53 pm

    Ask away.

  3. Phil on February 9, 2009 at 4:40 pm

    Hi Jean,

    I’ll try to keep this from getting too confusing. Wish me luck!

    I created and sold design work to company A. Then company A resold it to company B. Now, company B is being purchased by company C. Company C wants to buy the designs that I originally sold to company A. It seems like I still own the rights to the design and am, therefore, entitled to selling them again. Is that correct? No agreement was made with company A to turn over the copyrights.

    Thanks for your help,

    Phil

  4. Jean Perwin on February 9, 2009 at 5:38 pm

    You still own the rights to your design, but that may not the end of the story. You sold to Company A a specific set of rights. When a company is sold, usually the buying company buys any rights owned by the selling company. If Company B had the rights to use your design that it bought from Company A, it can sell whatever rights it has to Company C. Company C doesn’t have to buy the same rights again if it bought them from Company B. But, if Company C did not buy those rights from Company B or wants additional rights such as a full buyout of the design or to use the design in a different way than was originally authorized, then you have the right to sell it to them. They key here is what each company bought from the other and whether the usage is the same by all the companies.

  5. Alistair Banerjee on March 21, 2009 at 12:30 am

    Hello,
    I have an email from the designer that states that I own copyright to the logo but that they own the right to put the logo in his portfolio of his company website. He operates from outside the US & did send me the original digital files! Does this mean that I can trademark the logo in the US without any issue?
    Thanks

  6. Jean Perwin on March 23, 2009 at 11:05 am

    Yes.

  7. Gini Weslowski on March 31, 2009 at 12:10 am

    I am part of a committee- with no legal structure- raising money for local hospital. The committee needed a logo, so one of the members came up with a rough sketch. I took the sketch and reworked it , added text and created several treatments for t-shirts and signs. We have been using the end result for several months. Now, the committee is disbanding and there are several different opinions on what should happen in the future. The question is, who owns the copyright to the logo and/or treatments? The person who did the original sketch only? Do I have some rights to it?

  8. lhern on July 8, 2009 at 4:57 pm

    A client went directly to the printer for a reprint of a project I created for them. The printer’s files were lost in a computer crash. The printer is contacting me for the native files. Who owns the files? Can the client request a reprint without first asking the designer’s permission and then negotiating payment. Who should be contacting the designer for the native files?

  9. jameskdom on March 11, 2011 at 6:11 am

    Hi guys, I also have a question. I have been working in a company for almost 1 year and my job is setting up simple wordpress websites. They trained me on how to do it. And one of the process in creating simple websites is to put/embed an image on the landing page. But we don’t create the images, we just acquire them from google images. Am I or the company violated or going to violate any image copyright if we just get them from the google images?

  10. Jenny on May 7, 2011 at 9:01 pm

    Hi Jean, I wonder if you can help me? I have been doing my first design job since January this year to present… I am currently employed full time at a start-up food & beverage company. We have an employment contact and everything. My employer has breached contract by failing to pay me for two months. I want to make sure I have the rights to my artwork and stop them from using it. I did some character designs for them, templates are sent off to be produced for packaging. Can I stop them from doing this? Or get some sort of injunction to stop them from using my character designs?

  11. don on May 23, 2011 at 8:49 pm

    About 7 years ago, I was hired by a marketing company to produce logo design and branding for a new client of theirs. This marketing company no longer does work for that particular client but last year passed my details on to this particular client who was needing some more work done. The work has since been done. I’ve now received a request from the client to supply them with all the native files so that they can go to another agency to have their future work done. Where do i stand? Do I own the rights to the files and can let the client have them for a release fee?

  12. Sally on January 19, 2012 at 12:30 pm

    Hi Jean,
    I was hired by a struggling Boston non-profilt to redesign and brand a new website. The programmer and the mkt assistant came to them as volunteers. THe internal client was to be responsible for providing content. The agreement was that the project would happen over 12 weeks and I would be compensated by a grant. All went well until it became clear the client couldn’t write or organize content. When the time ended with the project incomplete as the client was six weeks late in delivery- they chose to stall and profess to look for additional funding, while putting the project on hold. Now they’re asking for my design files. I worked onsite 2 days a week as a program manager but put in additional hours as a designer working from home with my own software and computer.
    I rec’d an email asking for the live files- they have pdfs- and telling me they plan on buying the software. Do I owe them the files? I might add I donated over 60 hours pro bono to this project as they could only pay me a set stipend.

  13. Elizabeth on February 19, 2012 at 12:55 pm

    Hi Jean:

    I’m in the process of creating a new line of products for my company and need my graphic designer to release all rights to the files she’s creating. She has agreed to do so but do you have any sample verbiage or sample agreements I could use to make this agreement binding?

  14. Silas Gatewood aka Silas Beach on March 4, 2012 at 7:18 pm

    I have worked for a company for 30 years the first 9 I was not paid a salary just verbal mostly paid under the table,I created the corporate identity and all the logos,I became corporate in 1990,the company is now a multi million company,my side business was selling t shirts with my logos for the company, the tower got mad at me and (worst part I got cancer and made full recovery and still the boss wont even speak to me )along came one of his buddies he got mad and let his buddy take over my artwork,with another verbal agreement to pay royalties,this has been going on for 9 years and I have only received 3 or 4 checks over the years never was I nver allowed to make any payment arangment with the both of them,just ingnored. they just took over ,now it looks as though the boss is trying to fire me,I am now 60 with no job possibly,I never was a clocked in now after all these years I might have to move on, I call this a breech of agreement,the company I work is Frenchy’s clearwater fl.and Hooters is the bigger company who took over my logos,my boss just ignores me,mostly verbal abuse,now I punch time clock and work as labor 20.hr.,long story…
    I became very well known as the man who built his empire,Frenchys clearwater beach-Hooters,very big money I am out over 100.000

  15. Aaron on March 21, 2012 at 4:35 pm

    Can a company trademark and use a logo they do not own the copyright to?

  16. Pa Vang on March 24, 2012 at 9:52 pm

    Hi…. I’m in college right now and I just recently designed this really cool design for my class homework and I then put my College’s name on it. I really want to put it on a t-shirt but I’m not selling it. I’m unsure if this is legal or illegal to create my own design while putting my college’s name on it…? Please answer ASAP. Thank you.

  17. Glen on April 1, 2012 at 5:34 pm

    Dear Jean,

    First of all, thanks for all your help.

    I have more of a general question. Let’s say there is no written contract, and no NDA, but the design was created on client’s computer at their office. The designer just works on a sort of a regular freelance basis. I understand, the source file created belongs to the company – that’s what they paid for. But who has the copyright in this case?
    And a bit more broadly – does any work you’ve been paid for become a work-for-hire even if there’s no contract, or if there’s no written transfer of rights, the designer keeps the copyright?

    Thanks a lot!

  18. Klara on April 10, 2012 at 8:24 am

    Dear Jean,
    thats amazing what you provide here to so many people. Thanks for all of them. I found reading through the posts very helpful.

    If i can ask you for a bit of your time, I’d have 2 questions.

    1. When i create a logo for a company without an agreement they dont have any rights to TRADEMARK it or REGISTER the logo until I transfer the rights to them?
    Maybe i got confused, but i think I OWN THE COPYRIGHT and they own the TM and R. Is that correct?

    2. Now, I’ve been asked to design a promotion (email conversation mostly – no agreement except quote). So I have been asked to provide quote for the first stage. Such quote for: “Main design for poster/3 layout options” had been accepted.
    Even-though I have designed about 5-6 ideas, after 2 revisions, they have chosen ONE layout/design. They DID pay for it, no problem.
    My quote was very low in expectation of work on the whole project, but yes, “the agreement/quote” was only for the stage (layouts and concept). Now they hired “marketing assistant with design background” and are asking me for the working files.
    Its not the first time I found their maneuvers weird, so its the definite finish of working for them – never again… I still would like to say goodbye to this company in polite manner, but I though that I should provide them only with the last approved layout.

    Would you agree with my answer?
    “It is not a standard that designers are giving up their working files before the project is completed. Please note that ideas, which are not accepted, remain the property of the designer (unless agreed to “work for hire”), and may be used in the future during other assignments.
    Since I would like this to stay simple for both parties. I am open to provide you with the working files of the accepted layout free of charge.”

    Thank you heaps and am sending positive energy your way.
    Klara

  19. Website Designers Sunshine Coast on July 9, 2012 at 12:13 am

    I think that work completed on the job should be owned by the employer. Perhaps if everybody was not into copyrighting and trademarking everything more information would get shared across the net.

  20. Andy on July 13, 2012 at 9:07 am

    Where are your citations in regards to the above article?

  21. chrissy on August 5, 2012 at 11:14 pm

    I own a company that designs and decorates cakes. A former employee of mine has opened her own cake decorating business. She is promoting her business on social media and has her own very nice and professional website. She is talented. However, several of the cake designs she has posted on her site were clearly taken at my place of businesss and is work she did while employed by me. They were clearly taken at my place of business and she used my materials and ingrdients. Do I have a right to ask her to remove the photos of work she did at my restaurant while promoting her business?

  22. Yolonda Frederick on August 17, 2012 at 10:11 am

    Hi Jean,

    I have developed an idea that I came up with three years ago. I am working with a company that is doing my prototype but I am having issues with them so I went to another company who wants to re-design it at a fee (7500) then outsource it to another company to build the prototype (9500). They also are asking for trademarking and patent rights as well as 500,000 worth of royalties after the invention is sold or licensed. I feel it is my idea and this sounds more like a partnership than having them re-design and build the prototype. I already have a complete design and prototype that I want to make fully functional and this is why i enlisted their services… They also offered to help find a licensing opportunity for my product through their contacts and I understand that if this is done then I will obviously pay an agreed upon commission but to sign a document that binds me to paying over 16,000 in cash, sharing my ownership rights and a 500,000 royalty agreement before any work has been done, seems like too much of a gamble. What are your thoughts?

  23. Susan on September 17, 2012 at 11:32 am

    Hi, if I find a poster on an advertising agency’s website that I like, is it okay to “duplicate” that poster including copying the art elements or do I have to gain permission to use any elements from that poster? Thank you

  24. Depotsdesign on October 1, 2012 at 1:07 am

    I absolutely love your blog and find a lot of your post’s to be precisely what I’m looking for. Would you offer guest writers to write content for yourself? I wouldn’t mind composing a post or elaborating on a lot of the subjects you write regarding here. Again, awesome blog! wanted to thank you for this great read!! i am definitely enjoying every little bit of it i have you bookmarked to check out new stuff you post.Thank you http://www.depotsdesign.com

  25. Naomi on October 16, 2012 at 4:17 am

    Hi,

    I am trying to find out whether I have legal right to some of the work I produced when employed by a company.

    I was employed through an agency and paid by the agency an hourly rate while working at this company, now I have been ‘let go’ and the company is refusing to let me use the brochures, newsletters etc on my website and portfolio. Am I entitled to use the work I have produced? I’m not sure what my rights are. I have been working in DTP and graphic design for roughly 20years and this is the first time I have had a problem like this.

  26. Amanda on November 19, 2012 at 1:42 am

    My ex Employee has just stolen my Logo/Branding and re created it with his new business details, his even kept my colour scheme… IS this legal in Australia?

  27. Prince on April 11, 2013 at 4:39 pm

    Hi,

    I have a questions aswell.

    I run a small design studio and we have an internal web designer and a developer.

    A client in Sept 2011 approached us for a website design, logo, domain name, hosting, & web development. We finished the website and made it live in dec 2011.

    1 year went by and it was time for renewal of the domain and hosting. Client didn’t pay for the renewal, and the domain and hosting expired.

    Now client came back and is requesting the website design files and a working copy of it.

    There was no contract written, and there was only 1 note on the invoice that we gave them, stating “Website Hosting and Domain are renewed annually”.

    My question is: Who owns the writes to the design files and the coding?

    Domain name was registered under our name. And it expired.

    Thanks

  28. Stef on May 19, 2013 at 7:18 am

    Hi there, I have a problem.

    While working for a company as an employee, I developed a cartoon character. I never signed any agreement with regard to copyright and neither did the Company I work for. I have since left the Company in question and want to use the Character I created while working for them. Do I own the copyright?

    Please can anyone answer this question for me.

    Stef

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