Contracts - Copyright, Usage

[adamd1]

Hey,

 

I have a question regarding copyright and usage of renderings.

 

When creating a render of the clients design, the renderer is the person who maintains the copyright of the image - correct? Is it true that as a renderer, what is being sold is a license to use the image, and what it is used for (presentation) but not for example, for the client to make prints of the image and sell them in a gallery per se, unless that was the agreement of course.

 

I know with other services that create images (photography, fine art) the creator is the copyright holder and sells a usage license - copyright usually isnt transfered. In the case of presentation drawings, one could provide an usage license with an unlimited time frame.

 

Usage license should be included in the contract, yes?

 

 

Along those lines, does the renderer need permission to use the rendered image for their portfolio as a work sample.

 

 

 

Thanks!

[John Dollus]

Usually, our work is considered 'work for hire' which means the employer/client owns the work regardless of the author/artist:

 

http://www.copyright.gov/circs/circ09.pdf

 

section b.4 (pictorial illustration)

 

This is the default ruling but any arrangement regarding use can be specified in the contract signed by both parties.

[adamd1]

Thanks for the link!

 

I read through some of it, and it seems that a rendering produced by an independent contractor for a client would not be considered a made-for-hire unless both parties specifically agree in writing that the work is to be considered made-for-hire.

 

Quoted from http://www.copyright.gov/circs/circ09.pdf "If an independent contractor created the work, and the

work was “specially ordered or commissioned,” part 2 of the

definition above applies. An “independent contractor” is

someone who is not an employee under the general common

law of agency.

A work created by an independent contractor can be a

work made for hire only if (a) it falls within one of the nine

categories of works listed in part 2 above and (b) there is a

written agreement between parties specifying that the work

is a work made for hire."

 

If you were working as an employee and were required to produce a rendering, then the work would be a made for hire work.

Edited January 13, 2013 by adamd1

[egmehl]

My understanding of the law here is in line with Adam's. Normally you as an individual hold the copyright unless explicitly given away. All the companies I've worked for in the past as a salaried employee included a clause in the employment contract stating that my work belonged to them, which made it work made for hire. But if you are independent from the architect, then you have the copyright and therefore can doing anything you want with the image. What you SHOULD do with it is another matter I guess - I usually just make a quick check before I post stuff to my portfolio to make sure I'm not damaging any relationships. And if you have signed a confidentiality agreement probably get permission in writing.

 

I think granting limited rights is common in photography and maybe advertising in general, but I bet most architects would balk at a contract that gives anything less than unlimited rights. Though im interested to hear if anyone has experiences with this. My opinion is you should definitely spell this out in your contract, even though you are essentially saying "do whatever you want with it". To be totally clear, you probably need something that mentions sub-users

 

Oh, and I'm not a lawyer so take this for what it's worth!

[John Dollus]

there are several factors but I generally follow this as a guide:

http://www.asai.org/CopyrightLaw

 

If a client is being dodgy about paying for a completed job and is actively marketing with the image(s), having a registered copyright usually makes for a quick settlement.

 

I also find some flavor of use and copyrights from the contracts available on the site sufficient in most cases.

[egmehl]

That was interesting to read. They say "A transfer of all rights is by its nature exclusive." while most other sources I've read don't make that explicit connection. In my mind the term "all rights" is still somewhat vague.

 

As an example, iStockPhoto includes this as part of their standard license: "Perpetual, non-exclusive, non-transferable worldwide license for use..." which seems to hit most of the important points and not give away more than intended (maybe).

 

I guess that's why there are so many lawyers out there.

[John Dollus]

'Perpetual, non-exclusive, non-transferable'

 

If it's non-transferable then it is exclusive. A lawyer definitely wrote that line for job security.

They probably mean that they can sell the same photo to anyone else under the same conditions while the purchaser can not but it's not worded that way.

If you are that concerned about it, it would be worthwhile for you to develop your boilerplate contract and pay an IP/business lawyer to review it for you. It should cost you about $500.

Personally, I spent a couple years developing my own contract through a process of evolution and have not had an issue in over a decade. I have found most clients to be very reasonable and when they are not, a good termination clause certainly helps.

[artmaknev]

I wouldn't claim ownership of the rendering and post it online unless client agrees, it is one of the best ways to lose a client or get into trouble when images are displayed online without client's permission. Sometimes they don't want their design to go public until their client approves the design, so you might be putting their credibility at risk. But also, the designer owns the design, and a rendering is a representation of the design, it is not entirely the work of the artist, because you are given information such as CAD, photo references and such to create the vision, without all that information there would be no rendering.