By On Your Terms and Loft Legal
April 2024
You’ve crafted the perfect logo, it’s some of your best work. Or you’ve captured the most beautiful moment in your latest photo shoot. Now you need to stop others copying it – because if they did – the value of your service would be significantly decreased. As a graphic designer or photographer in New Zealand, safeguarding your intellectual property is key. In this blog, we explain how copyright protection arises, how to stop others copying your work and why protecting your rights may allow you to charge more.
What is copyright?
The owner of ‘copyright’ in an original piece of work has the legal right to do certain things with the work. Whether it's a logo or other graphic, photograph, or a piece of written content, having copyright in your creation allows you to control how it’s used and distributed.
How do you get copyright protection?
To be eligible for copyright protection, your work must be original (not copied from someone else’s work) and a product of your unique skill, labour and judgment. The level of required skill, labour and judgment isn’t high – the creator must just have made free and creative choices.
In New Zealand, copyright protection automatically arises as soon as your work is created, you don’t need to register your right. The moment you create your work, ie, when the photograph is taken or the logo/graphics/artistic works is created, copyright protection kicks in. In other jurisdictions, such as the USA, registration is required.
Who owns copyright?
As a creator, you're the default owner of your work. However, there are two key exceptions to this rule:
- if the creator creates the work in the course of employment, the employer is the owner
- the "commissioning rule," which says if someone agrees to pay you to create a work — such as a series of photographs or a set of graphic designs — they typically own the copyright in that work.
The commissioning rule can be overridden by written agreement between the creator and the commissioner of the works. Therefore, it’s key to have clear agreements with your clients, not only to define the scope of the project but also so that everyone is clear about who owns the copyright in the works being created and what can be done with the works.
While it might make sense for the client to own the copyright work rather than the photographer or graphic designer, it’s important to be clear about any conditions – such as copyright ownership will pass once the designer has received payment.
When is copyright infringed?
To infringe copyright:
- the copy must look similar to the copyright work;
- the copyright work must have been referred to when copying; and
- the copy must take a substantial part of the copyright work. This focusses on the quality of the part copied and not the quantity.
Forget the misconception that if you change 30% of something it will no longer have copyright protection — there are no hard and fast rules when it comes to copyright infringement. Even copying a small, distinctive element of a logo can infringe copyright.
While incorporating stock icons or graphics into logos or other imagery is common, it's crucial to make sure you have proper permissions from the owner of the stock icon or graphics for it to be used in the way you intend. Check the T&Cs of the stock library carefully to see whether you can use the icon/graphics in a logo for commercial purposes.
What rights do I need to keep?
Copyright ownership gives the owner the exclusive right to do what they want with the work and to give others the right to do the same. Whether it's copying, distributing, or adapting work, the owner holds the power.
As the creator, you might want to retain rights to use your work for a particular purpose, even if copyright ownership passes to your clients. You might want rights:
- to reproduce the work for promotional purposes (such as part of your portfolio)
- if you’ve incorporated other copyright works you created for another project or that you want to repurpose (such as computer code).
You must have clear written agreements with your clients to retain these rights and protect your creative autonomy.
What are moral rights?
Even if you're not the designated copyright owner, you still hold ‘moral rights’ as the creator of a work. Moral rights allow you to require the owner identify you as the creator in certain circumstances. There are also other moral rights to protect your work from being altered in a way that could harm your reputation.
How do I (practically) prevent my work being copied?
In New Zealand, copyright protection is automatically created when the work is created. While not necessary to enforce your rights, adding the © symbol can work as a deterrent to potential infringers by showing you claim copyright in a particular work. The © symbol should be used together with the year of creation and the name of the owner, eg. © 2024, On Your Terms.
Employing strategies such as watermarking, restricting access to high-quality images, and establishing clear usage terms can further prevent unauthorised use of your work.
If you discover your copyright in a work has been infringed, before resorting to legal recourse, consider contacting the infringing party yourself or the ISP—often, a conversation can clear up any misunderstanding.
Key Points
Copyright exists automatically when an original work is created. As a designer or photographer, if you’re creating work for others, you need to be clear about who is the owner of the copyright in your work, and what rights the other party has to use the work. Because your originality is what gives your work value, and allows you to demand the prices you deserve.
On Your Terms offers a Creative Services Agreement and Creative Services Essentials Bundle, crafted to establish clear client engagements and protect your creative rights. Alternatively, reach out to our friendly specialist intellectual property law firm, Loft Legal, for personalised legal guidance tailored to your unique circumstances. Your creativity is your most valuable asset—ensure it remains safeguarded.
Also check out our How to protect your brand blog.
On Your Terms makes business legals easy for Kiwi SMEs. Get legally sorted and gain peace of mind using our online, customised, affordable legal documents and tools. We’ve combined human legal expertise with the convenience of technology to offer a new way to legal.
Loft Legal provides intellectual property (IP) legal services, including how to protect your copyright, actions to take if you believe someone has breached your copyright and general advice and education about IP.
