If you ever hired a wedding photographer you may recall you paid a fee to shoot at various locations, provide you with a proof sheet and provide a designated set of prints. If you wanted to order additional prints, there was an additional charge. You may also remember that the Photographer retained the original negatives and/or digital files. This is a common practice, designed to protect the rights of the creators’ Intellectual Property. Intellectual Property is defined as: A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc. So, the wedding photographer sells a specified product but not the unlimited rights to the use of creative work.
In the field of advertising design, we rely on the Automatic Copyright provision of the law which states: Works are automatically protected by U.S. copyright laws. As of January 1, 1978, under U.S. copyright law, a work is automatically protected by copyright when it is created. The owner of those rights is the creator.
Creative work is compensated based on specific applications. A classic case was, several years ago when Porsche commissioned a photographer to shoot a cover for their annual report. He did and got paid for that service. The executives at Porsche like the photo so much, they decided to use it in their advertising campaign. They produced a billboard featuring that photo. The problem was, they never notified the photographer who owned the rights to that photo, nor did they compensate him for the additional use. Porsche’s position was, “We paid for the photograph.” The court didn’t see it that way, they only paid for the use on an annual report. The photographer was awarded over a million dollars in restitution.
More recently, the use of Intellectual Property came up when the US Post Office printed a Statue of Liberty stamp. The problem is they did not use the real Statue of Liberty, but instead they reproduced the sculptor that stands at the New York Casino in Las Vegas that was created by Robert Davidson. He suited and the Judge awarded him 3.5 million dollars.
So, when an Ad Agency, Marketing Consultant or Graphic Designer creates artwork for an ad, a brochure, a catalog or a package design it is done for a specific reproduction application and not universal or unlimited use. The exception is a Logo Design, that will be reproduced in many applications. This is why the cost of a logo can be in the thousands and even hundreds of thousands of dollars depending on the client and projected usage.
All artwork is created, produced and delivered to the client but the original files are not. The marketer received PDF or JPG of artwork. Compensation for creativity and production of design projects are compensated by a Fee, invoiced on a Project Bases, or produced under a Contract with retainer.
In the event that the Marketer decides to produce their own advertising elements in-house, hire an outside designer, or engage another ad agency, the original computer files, links, graphic components and fonts remain the property of the original creator. In other words, the client already has received copies of the finished work, but does not own the computer programs, elements and links that make up those elements. Software like; Photoshop, In-Design and Illustrator are used to create, assemble and produce finished projects they are delivered as PDF or Jpg files, that is what the client pays for.
The Client has no idea of the amount of data and size of files that make up their account and project files. If the Marketer decides they want all the original and component files, then they would need to arrange to buy out the rights. This entails the creator coming up with a price based on the value the time, sometimes a lot of time, to sort and transfer the files on to another Hard Drive provided by the Client.
Even when all files are delivered, it is most often confusing to the recipient as they are in the order that the original designer structured the master file, folders, photos and links, not how the client might arrange them. Another potential problem is, like most designers, all of my working files are done on a MAC OS X and utilizes the current software. So, the new owner of my “artwork” would have to have exactly the same software applications and fonts which are not transferable. I once had a designer complain that they could not open my files because they were on a PC and my files were MAC, and another time, the client had an older version of MAC software… sorry that is not my problem.
So, the bottom line is that Intellectual Property has a value to the originator in the form of a continuing relationship and compensation on future projects. The new owner can buy the rights to Intellectual Property whereby the creator relinquishes their ownership and the client has unrestricted future use.