Co-designing and rights

ybaggar's picture

Hello,

I need some advice from the pros here.
Recently I've been working on customs fonts and I may get other jobs in the kind soon. This brings me two situations I'm not sure how to manage:

1. Somebody has designed a typeface and hires me (as a freelancer, working in the office and/or at home) to perfect the design, complete the character set, space, kern and generate the files. In this case, we could say the person created the design of the typeface, the general concept, but my work also changed this design.

2. Somebody hires me (as a freelancer) to help on a custom typeface for another client. We work together on the design and the production. The exclusive rights to use are then sold to the client for a defined duration.

My question is, how do we deal with the rights on the typeface(s) in each case?
Does the way I am hired change anything? In-house, i guess i would loose any right? What when it's a freelance job, does working home or in the office changes anything?
Am I not supposed to get a portion of the rights? How can you calculate that?
What kind of contract should be made?

Till now I worked mostly on graphic design jobs where rights of use didn't come into play.

Thanks in advance for your help and advices!

Stephen Rapp's picture

Others with more experience will likely chime in, but from my perspective I would speculate that the person you were hired by retains those rights unless you had previously otherwise agreed upon this as being a collaborative project.

S

blank's picture

What kind of contract should be made?

There should have been contracts before work ever began. If you want to retain any ownership of the designs you need to to discuss this with an experienced attorney immediately and get contracts in place. Try contacting other type designers in Switzerland to see if they can recommend someone.

Si_Daniels's picture

Agree with James. If there's no paperwork to define ownership/rights then the only thing stopping you from claiming ownership is your relationship with the clients, and your reputation amongst the community.

ybaggar's picture

Hmmm... yeah i guess what i'm trying to figure out is what are the conventions, how does it work usually?
Is it, like Stephen says, that the person who hires me has full rights on the typeface, even if, in the end, i'm responsible for 20, 50 or 90% of the design?

I should add that, for case 2, I was more thinking of a corporate/communication agency (eventually just a graphic designer alone), which means there wouldn't be another typedesigner involved. Probably just somebody art directing more or less. And this more or less is the problem.

I'm looking for the right path to take on my future works, I understand that on previous works it is difficult to reclaim anything without proper contracts and that's not what i'm looking for anyway. I just want to be ready and well informed, so I can also discuss with future clients.

Of course in the end the question is also, would the client still accept if I was to reclaim rights from the beginning. But if this is standard line in the industry, i guess it'd make the negotiation easier.

John Hudson's picture

In case 1, I would consider that work for hire, and wouldn't expect a design credit or a share of rights, unless a share of rights were agreed as payment. In a case like this, it is a good idea to establish, in a written agreement, what kind of credit you may take for your involvement in the project. I have done work for some people who prefer that my involvement in the project remain confidential, and for other people who are happy for me to include mention of the work in a CV or portfolio.

When I'm the person hiring, rather than being hired, I'll give a design credit if the associate designer has significantly contributed to the overall look of the typeface. I never have any objection to associate designers including mention of work for me in portfolios etc. so long as the level of involvement is accurately represented.

In case 2, as you describe it, I would say that you definitely deserve a design credit, but not all customers will want to give it to you. Whether you have a share in the rights, though, is a contractual matter, and not one of right. The other designer may view your involvement as work for hire.

kentlew's picture

As John points out, "credit" and "rights" are two different things. You may be entitled to claim credit for anything that you've worked on (in relevant proportion, of course). But rights, as in copyrights or other intellectual property rights under the law, will be governed by applicable statutes.

What constitutes "work for hire" (especially in the absence of any explicit contractual arrangement) may differ in different jurisdictions. You should consult someone versed in Swiss intellectual property law.

ybaggar's picture

Ok, thank you.
Actually I'm working mostly in Germany now.

What i find a bit bizarre here, is: what is stopping corporate agencies to hire typedesigners on a freelance basis instead of ordering a typeface, so that they can claim the rights over it? Of course Typedesigners could refuse and say they don't work that way, but is that really the issue? In the end, the working process may be very similar.

blank's picture

…what is stopping corporate agencies to hire typedesigners on a freelance basis instead of ordering a typeface, so that they can claim the rights over it?

It happens all the time. The type designers don’t work cheap, tho.

ybaggar's picture

All right! So I guess the best is always to discuss with the client and make a clear contract.

kentlew's picture

Hiring on a freelance basis generally does not automatically trigger "work for hire." Employment does. Sometimes the line gets a little gray.

Attorney Frank Martinez addressed this topic in an article for Print magazine, republished on his site:

http://www.martinezgroup.com/articles/1999printownup.html

If a company wanted to get a typeface developed and own/control all rights without negotiation, then I suppose they could put a permanent staff position for type designer on the payroll.

ybaggar's picture

Thanks for the link. Interesting reading. It somehow confirms my thinking, which is that, if you work as a freelancer, without a contract stating otherwise, you remain the author of your creations. I imagine this would be quite easy to prove in a court, where you'd have all the files on your computer, probably sketches, prints, emails, etc...

In Europe, I doubt being an employee is enough to loose ownership, but this is done through the employment contract. I may be wrong tho, and I should get some proper legal expertise.

I must add that, in my experience at least in Switzerland and Germany, few graphic designers make "physical" contracts with their clients, unless a lot of money is involved. Till now, all my freelance jobs where dealt without contracts.

1985's picture

x-y, same here, most work I undertake is without contracts.

Case 1

I'd expect to get a credit but no rights. Here your expertise has been called in but it is somebody else's initiative and they are hiring you for your technical skill. It's quite common to see somebody else credited for help with italics for example. The more you have changed the design, the more prominent you might expect this credit to become. You may get a credit for mastering the font.

Case 2

I think this is more confusing. When I go to work in a studio as a freelancer I don't expect to retain the rights to anything that I do. I think this is part perception and part the nature of the work. Usually I am working under somebody's direction, I am there to make up the numbers in the studio and to get work completed - it is as if I am in-house staff for that day, week or month. If I was to work directly for a client I would probably expect to retain more rights as I would have the opportunity to negotiate a contract with them directly.

Feel free to contend, I'm inexperienced at the business side of things.

1985's picture

I guess it really is all about what you agree beforehand.

ybaggar's picture

Yeah case 2 is really complicated to handle i think. As a graphic designer, i also don't expect getting the rights of my works. But with type design, I really think every case may be different. If it is just about help (correcting some glyphs, completing the character set) or technical work (spacing, kerning), then it's fine for me if I don't get any right.
But as soon as it's more than that, I would expect getting at least part of the rights.

Working freelance is very different to working inhouse. Inhouse, the company pays social charges, offers some relative professional security, and, at least in Switzerland, if you get fired, you can reclaim money from the state as unemployed. As a freelancer, there is no unemployed situation so the state does not support you if you don't have clients for one month. You have to pay for your retreat, for your material, etc...
For this reason, I would expect getting partial rights when i'm a partial designer, or total rights if I'm the real author.

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