Hypothetical question, who owns design and artwork? (1 Viewer)

[p5woody]

I have been doing more and more designs lately and I have a couple of hypothetical questions about who owns the designs and artwork.(legally and ethically). I don't have any issues right now but want to make sure I don't run into any in the future.

1) General question who owns design and artwork, the designer or the customer? Does it matter if they pay for it or not?

2) More specific - I am contacted by customer and we create a new design working together. I take their idea, create mock-ups and adjust it based on their feedback. Are both designer and customer free to use it anyway they want? For example could customer take design and go to another designer and use many of the design elements to produce add on items (dealer/felt/etc). Also could designer take the design and use it for another customer, not an exact match but something very similar.

3) Same as above but it is a replica of a current design, not really a unique design. Does it matter?

4) Images found on websites with no mention of artist. Are they free to use? Also if you are able to determine artist and you attempt to contact artist/website but they don't respond. The image is just part of your design not the whole design.

5) I win a design contest (hypothetically) and I design a matching dealer button and it is included in the group buy. First question does the vendor hosting the contest have rights to the dealer button? Can I take the winning design and have it created by another vendor?

Any other situations I should be concerned about?

 

[Mr Tree]

I have been doing more and more designs lately and I have a couple of hypothetical questions about who owns the designs and artwork.(legally and ethically). I don't have any issues right now but want to make sure I don't run into any in the future.

1) General question who owns design and artwork, the designer or the customer? Does it matter if they pay for it or not?

2) More specific - I am contacted by customer and we create a new design working together. I take their idea, create mock-ups and adjust it based on their feedback. Are both designer and customer free to use it anyway they want? For example could customer take design and go to another designer and use many of the design elements to produce add on items (dealer/felt/etc). Also could designer take the design and use it for another customer, not an exact match but something very similar.

3) Same as above but it is a replica of a current design, not really a unique design. Does it matter?

4) Images found on websites with no mention of artist. Are they free to use? Also if you are able to determine artist and you attempt to contact artist/website but they don't respond. The image is just part of your design not the whole design.

5) I win a design contest (hypothetically) and I design a matching dealer button and it is included in the group buy. First question does the vendor hosting the contest have rights to the dealer button? Can I take the winning design and have it created by another vendor?

Any other situations I should be concerned about?

Someone else will have to speak legally, but as a design owner I will say that if J5 was passing the Hitching Post design to others I would be upset. (John if you're reading I know you are awesome and would never do this-just talking hypotheticals!) I would tend to think the customer has legal ownership of the design as they commissioned its creation. As with most things once it is created it should belong to the customer.

 

[DrStrange]

This depends on the contract and the state. Legal help would be wise.

IANAL - but as I recall the artist / designer holds the copyright as a general rule and the buyer paid for the right to use it when they paid.

But really, get a lawyer to be sure -=- DrStrange

 

[Poker Zombie]

I have been doing more and more designs lately and I have a couple of hypothetical questions about who owns the designs and artwork.(legally and ethically). I don't have any issues right now but want to make sure I don't run into any in the future.

1) General question who owns design and artwork, the designer or the customer? Does it matter if they pay for it or not?

2) More specific - I am contacted by customer and we create a new design working together. I take their idea, create mock-ups and adjust it based on their feedback. Are both designer and customer free to use it anyway they want? For example could customer take design and go to another designer and use many of the design elements to produce add on items (dealer/felt/etc). Also could designer take the design and use it for another customer, not an exact match but something very similar.

3) Same as above but it is a replica of a current design, not really a unique design. Does it matter?

4) Images found on websites with no mention of artist. Are they free to use? Also if you are able to determine artist and you attempt to contact artist/website but they don't respond. The image is just part of your design not the whole design.

5) I win a design contest (hypothetically) and I design a matching dealer button and it is included in the group buy. First question does the vendor hosting the contest have rights to the dealer button? Can I take the winning design and have it created by another vendor?

Any other situations I should be concerned about?

Disclaimer: Not a lawyer. I had to handle working with an artist on a project 27 years ago, and this is what I recall

1) Legally, it becomes a question of contracts - most of which is probably never discussed for poker-chip art. Art used in publications typically is still owned by the artist and printed/reprinted with permission of the artist.

2) Commissioning artwork makes the artist the employee or contractor (tax implications here) of the commissioner (customer). At that point, anything produced belongs to the employer (customer in this case).

3) It depends on 1 and 2. Assuming you are using #2 (commissioned work), the art belongs to the employer, and anything you produce that is substantially similar would have to be hammered out by a copyright infringement case.

4) Assuming no disclaimers (many font websites offer stuff free to use, but ask for payment if you intend to use it commercially), the art belongs to the website owner and is not free to use. However, there has been more and more stuff challenging stuff posted on social media, and ownership of those things. Obviously, this is something I didn't have to deal with in the late 80s.

5) Bask to #1. If the contest does not stipulate that entries become the property of X, then the art is still yours. Your companies that have a host of lawyers on hand always bury in the contest rules that all entries become the property of X. If Josh or OldWest were to hold a contest, I don't know if they would print rules, much less all the legalese to protect themselves. I suspect that if you produced art for a chip design contest, then it would be implied that you are giving permission for them to produce chips with your art, however add-ons like table felt, cut cards, dealer buttons, coffee mugs, t-shirts etc. would require them to ask for your permission. You on the other hand could go hog-wild.

Again, not a lawyer. But more experienced in this than I would like to be.

 

[Mr Tree]

Disclaimer: Not a lawyer. I had to handle working with an artist on a project 27 years ago, and this is what I recall

1) Legally, it becomes a question of contracts - most of which is probably never discussed for poker-chip art. Art used in publications typically is still owned by the artist and printed/reprinted with permission of the artist.

2) Commissioning artwork makes the artist the employee or contractor (tax implications here) of the commissioner (customer). At that point, anything produced belongs to the employer (customer in this case).

3) It depends on 1 and 2. Assuming you are using #2 (commissioned work), the art belongs to the employer, and anything you produce that is substantially similar would have to be hammered out by a copyright infringement case.

4) Assuming no disclaimers (many font websites offer stuff free to use, but ask for payment if you intend to use it commercially), the art belongs to the website owner and is not free to use. However, there has been more and more stuff challenging stuff posted on social media, and ownership of those things. Obviously, this is something I didn't have to deal with in the late 80s.

5) Bask to #1. If the contest does not stipulate that entries become the property of X, then the art is still yours. Your companies that have a host of lawyers on hand always bury in the contest rules that all entries become the property of X. If Josh or OldWest were to hold a contest, I don't know if they would print rules, much less all the legalese to protect themselves. I suspect that if you produced art for a chip design contest, then it would be implied that you are giving permission for them to produce chips with your art, however add-ons like table felt, cut cards, dealer buttons, coffee mugs, t-shirts etc. would require them to ask for your permission. You on the other hand could go hog-wild.

Again, not a lawyer. But more experienced in this than I would like to be.

This SEEMS like it should be right to me. I would think commissioned art is the property of the person paying for it.

 

[CdnBeerLover]

Like most other posters, I am not a lawyer. I seem to recall hearing about the phrase "work for hire" (Wikipedia) in similar discussions in US-based media in other contexts (music ownership). My understanding is that for the most part, if that specific phrase isn't in the contract, the artist retains copyright and can do whatever they want with any of the designs they create, even if it was "commissioned" by someone else. There are specific areas that are automatically covered by that, but I don't know if poker chip inlay design would fall into that.

But that's US law. If the artist you are working with is in Canada, for example, I suspect Canada's copyright laws are the ones that are relevant, not the US laws, as the work was created in Canada. And the laws are different. For example, Canada does not recognize the concept of a "work for hire", among other differences (link). Canada's legislation on copyright is here. While that isn't relevant to p5woody, it may be to others.

But as the good doctor stated, if you really want to be sure, ask a lawyer.

 

[Mr Tree]

Like most other posters, I am not a lawyer. I seem to recall hearing about the phrase "work for hire" (Wikipedia) in similar discussions in US-based media in other contexts (music ownership). My understanding is that for the most part, if that specific phrase isn't in the contract, the artist retains copyright and can do whatever they want with any of the designs they create, even if it was "commissioned" by someone else. There are specific areas that are automatically covered by that, but I don't know if poker chip inlay design would fall into that.

But that's US law. If the artist you are working with is in Canada, for example, I suspect Canada's copyright laws are the ones that are relevant, not the US laws, as the work was created in Canada. And the laws are different. For example, Canada does not recognize the concept of a "work for hire", among other differences (link). Canada's legislation on copyright is here. While that isn't relevant to p5woody, it may be to others.

But as the good doctor stated, if you really want to be sure, ask a lawyer.

Interesting point. There is a noted chip artist in Canada a couple of people here have worked with in the past....

 

[atomiktoaster]

Also not a lawyer, but do have some training in IP (software copyrights and patents mostly).

Zombie has some key concepts here. US copyright law is what I'm talking about here:

-Artists have an automatic copyright that can be strengthened by registering, or explicitly licensed or abandoned (e.g. Creative Commons, GPL, etc.)

-There is a concept called "work for hire" that can transfer ownership to an employer. It can work without explicit contract language, but would be stronger if done under a contract. If I write a piece of work-related software at my full-time job on a company computer, I'd have almost no chance of claiming copyright on it. On the other hand, if my company went to Microsoft and asked for a new feature to be added to Powerpoint (support for 3D glasses displays) and paid $10k for them to add that, it would be mostly impossible to claim we had a copyright on that part of the software and MS couldn't sell it to everyone who wanted it. The lawyers wouldn't let that happen, but the farther you get away from working as a full time employee, the harder it is to claim "work for hire".

-Helpful parallel: photo studios, for example, rarely do "work for hire". They will take pictures and sell you prints of their copyrighted work. Some smaller photographer will explicitly give you the original images on a DVD with full rights (while retaining their own rights for things like advertising). That's how our wedding worked. I'm pretty sure you can use industry standard practices to argue for or against "work for hire" applying. It's more likely to apply to a software contractor and less likely to a photographer.

-Mr. Tree is basically saying he feels like his art was produced as "work for hire". There's a strong argument there. My opinion is leaning toward that being the best default situation for how this kind of art should work around here. OTOH, J5Design watermarks appear on all his mockups. He may be claiming copyright on his art and licensing to the manufacturers and clients. The weird part of working that way without an explicit license is that the right to print chips or whatever needs to be transferred implicitly.

-There may be separate copyright and trademark coverage over art, though trying to make a legal claim of using something like "The Hitching Post" in commerce might be a bad idea due to things like gaming regulations.

-Working together closely with a customer could create a joint copyright without necessarily falling under work for hire.

-When you're replicating a design, you have to be careful about the existing copyright. I hesitate to make any claim in that area. Non-commercial fair use is probably the safest way to go there. That's my claim on my part of the dealer button art.

-Art on random websites: you have to assume a copyright with an explicit license. It's the internet though, so things have been fast and loose for years on that front. The risk of an issue popping up depends on who might hold the rights.

-Hypothetical contest: You'd probably have to figure out what was actually transferred here, using some sort of reasonable person argument. It's probably not "work for hire" since there was no input into the design. By accepting the prize, you at least reasonably agreed to a license to print the chips, and a license for use of any trademark (e.g. the phrase "Dozen Hypothetical Unicorns Casino"). The trademark and/or copyright may actually be implicitly transferred to the printer (trademark slightly more likely than the copyright, I'd think). There's a gray area around production of derivative works if the copyright hasn't fully transferred (a bounty chip, maybe). It's kind of a hypothetical mess that's best solved with some good faith give and take after the fact. You still have a strong claim on the button art copyright, since it was outside the contest itself. The original vendor has at least a license to print it for the group buy from your posts (I think). I would be worried about marketing that button art through a separate vendor. An implicitly transferred trademark seems pretty reasonable here, since the contest was to create a new product line. Having a few printed for yourself might be ok though.

 

[BGinGA]

Also not a lawyer..... but I do know that J5 retains rights to at least ~some~ of the artwork he produces. GCOP is one example, where his permission (and payment, I think) was required before a second wave of dealer buttons and re-buy chips could be manufactured. There are several other similar examples I know of, too....

If you don't (or didn't) discuss this issue with your artist-for-hire before work started, then probably shame on you. Knowing what's what up-front is always the wiser avenue to travel.

Not to say that J5 (or any other respected artist) would use your design without permission, but I think the person who paid the bill is typically paying just to use the artwork -- but usually doesn't own it -- which accounts for the relatively low rates that some of those spectacular artists charge. I'd think that buying the rights would typically cost a lot more.

 

[p5woody]

All good info, it will take me a little while to read and understand it all. I don't have any current issues, I just want to make sure I don't run into any, this is all new territory for me. FYI - I would never sell or give an existing custom design to somebody else.

Here is a specific situation: If I create a rounder dealer buttons that looked like an oreo cookie and I am contacted to create another one that is similar but a little different would this be an issue?

Another situation, chips were custom designed by another artist and now the person they were designed for would like me to design a custom felt and dealer button based on that design. I would match font and maybe use some of the same design elements. Should I have them talk to the original artist about it? Don't want to step on any toes.

Thanks for all the info

 

[pltrgyst]

You might want to read http://copyright.gov/circs/circ09.pdf, on "Works Made for Hire". Note specifically the classification of work done "as a contribution to a collective work", (such as a collaborative design effort done on PCF).

If I was designing a set of poker chips, I'd first do a sketch or a computerized drawing of my general chip design and layout, and put it up on the Web, thus clearly establishing my own copyright on the design *before* hiring an artist to clean up specifics and provide an image in a format acceptable to the chip manufacturer.

(IANAL, though I did spend decades at the US Patent and Trademark Office...I have no idea why.) :

 

[atomiktoaster]

All good info, it will take me a little while to read and understand it all. I don't have any current issues, I just want to make sure I don't run into any, this is all new territory for me. FYI - I would never sell or give an existing custom design to somebody else.

Here is a specific situation: If I create a rounder dealer buttons that looked like an oreo cookie and I am contacted to create another one that is similar but a little different would this be an issue? Sounds ok to me. There's nothing stopping me or J5 from taking an Oreo design and putting a horse instead of a bear in the middle, right? You can't copyright an idea/concept, just a specific work of art (Nabisco trademark aside).

Another situation, chips were custom designed by another artist and now the person they were designed for would like me to design a custom felt and dealer button based on that design. I would match font and maybe use some of the same design elements. Should I have them talk to the original artist about it? Don't want to step on any toes. I think you can write whatever you want in any font you have a license for. Depending on how in depth "design elements" goes, without a lot of support for it, I'd state my opinion that custom chip art is (or should be) work for hire, so you technically just need the owner's permission, not the artist. I'd still feel better if the owner talked to the other artist first though.

Thanks for all the info

 

[atomiktoaster]

Also not a lawyer..... but I do know that J5 retains rights to at least ~some~ of the artwork he produces. GCOP is one example, where his permission (and payment, I think) was required before a second wave of dealer buttons and re-buy chips could be manufactured. There are several other similar examples I know of, too....

If you don't (or didn't) discuss this issue with your artist-for-hire before work started, then probably shame on you. Knowing what's what up-front is always the wiser avenue to travel.

Not to say that J5 (or any other respected artist) would use your design without permission, but I think the person who paid the bill is typically paying just to use the artwork -- but usually doesn't own it -- which accounts for the relatively low rates that some of those spectacular artists charge. I'd think that buying the rights would typically cost a lot more.

I always took the relatively low rates to be just an acknowledgement of demand driven pricing. Full rights for an anticipated commercial use cost typically cost a lot more, but nobody is going to be able to match those rates for a home set if they're not doing it as a business investment. The artists are still doing work for hire on these small jobs, they just charge less for the same rights rather than not doing the job at all. Luckily conflict along these lines doesn't seem too common.

I'd be curious to here what some artists think about it. I'd say the community as a whole pays more heed to the spirit rather than the letter of the law in the IP arena.

 

[Mr Tree]

I always thought J5 was just being kind to the community. I certainly hope he charges casinos a great deal more than he charges us.

 

[slisk250]

This is all very interesting. Using my exit only customs as an example, I brought a very clear idea and actual photoshopped mocks to J5 who then cleaned them up, picked a better font, and turned them into AI format. In my case I would have an even stronger argument for ownership I guess. If I were to give those AI files to Steve to work on felt, buttons, and such, would I even need to ask Johnny for permission? It's a good question. I wonder if Johnny will see this and give his best guess on the legal details.

 

[RowdyRawhide]

This is all very interesting. Using my exit only customs as an example, I brought a very clear idea and actual photoshopped mocks to J5 who then cleaned them up, picked a better font, and turned them into AI format. In my case I would have an even stronger argument for ownership I guess. If I were to give those AI files to Steve to work on felt, buttons, and such, would I even need to ask Johnny for permission? It's a good question. I wonder if Johnny will see this and give his best guess on the legal details.

^^^^^^^ I am pretty much here.

DISCLAIER: I don't understand legal jargon at all


But I would like to think if I bring an idea to an artist to clean up and use their expertise on, and compensate them, then I would have full rights to do with it whatever I choose and use however I want. If they would like to use it as some promotional material, I would also have no problem with that either, as long as it was disclosed to me at some point. I'm not trying to step on toes here this just my opinion.

 

[atomiktoaster]

People who have worked with J5 or other artists: Have you received the illustrator or other print-quality files from the artist and sent them on to CPC or a ceramic vendor? Or did the artist send the files directly to the chip vendor?

 

[stocky]

People who have worked with J5 or other artists: Have you received the illustrator or other print-quality files from the artist and sent them on to CPC or a ceramic vendor? Or did the artist send the files directly to the chip vendor?

J5 sent mine direct to CPC. He did send me a proof but I can't recall if it was print quality.

 

[atomiktoaster]

J5 sent mine direct to CPC. He did send me a proof but I can't recall if it was print quality.

If you just get proofs, that makes the argument that the art is work for hire harder. You don't have the means to create derivative works or new copies whether or not you have the right to do so.

 

[slisk250]

J5 did both. Sent AI files to CPC and I.

 

[p5woody]

People who have worked with J5 or other artists: Have you received the illustrator or other print-quality files from the artist and sent them on to CPC or a ceramic vendor? Or did the artist send the files directly to the chip vendor?

I have always sent final print quality artwork directly to the requester and assumed they could do anything they wanted with it. I am just a hobbyist, not sure how others do it. I personally would not have an issue if somebody took my design and used it for something else.

NOTE: Just to be clear, nobody has raised any issues and I didn't mean to imply any issues had been raised. It was just something that popped in my head so I figured I would start a discussion to see how others felt.

 

[atomiktoaster]

It's a good discussion to have, and much easier to have it when there's no actual conflict going on.

 

[Poker Zombie]

I have always sent final print quality artwork directly to the requester and assumed they could do anything they wanted with it. I am just a hobbyist, not sure how others do it. I personally would not have an issue if somebody took my design and used it for something else.

NOTE: Just to be clear, nobody has raised any issues and I didn't mean to imply any issues had been raised. It was just something that popped in my head so I figured I would start a discussion to see how others felt.

I think this is a pretty important topic - even if problems have never arisen. The community as a whole is pretty friendly, though I have detected rifts before - the TTTubby/CPS chips/Palm Imports situation comes to mind. Of course in that situation, there was a substantial amount of money changing hands, while for most chipper jobs the amount of money that changes hands makes copyright suits a losing battle for both parties.

I will also take as a "for instance" Xdan's Bellagio knock-offs. I don't see MGM (The parent company of Bellagio) going after Xdan because there simply isn't enough money there to make it worth their time. If Xdan's super-secret Chinese chip producer kept cranking them out, they would eventually get a "Cease and Desist" letter. Only if they continued, would MGM bring the lawyers to bear. This I am also familiar with, after the production of a card game verrrrry loosely based off of one of their movie trademarks. They allowed us to continue selling the game for X number of days, then we had to change the name of the game.

 

[Puggy]

People who have worked with J5 or other artists: Have you received the illustrator or other print-quality files from the artist and sent them on to CPC or a ceramic vendor? Or did the artist send the files directly to the chip vendor?

I got AI files for both GCOP's and Colony Clubs. And also AI's for one hotstamp project, don't know if I ever make the chips though.
IMO GCOP (Grand Championship of Poker) artwork is owned by both J5 and me. And Colony Club artwork is owned by me.
(John, please correct me, if I am wrong).

 

[spikeithard]

Interesting question.. I would like to think I own the rights to my artwork I paid for but then again it makes more sense that I just paid for the right to use it/rent it. And J5 would need my permission for someone else to want to use it I would think.

 

[bivey]

J5 and I had this conversation about CdN as I was curious about it as well. Technically speaking (not a lawyer here) I do believe he has the rights to it. I do not agree completely with this and think the rights should be shared (i.e. law should be changed). For example, the concept of CdN was mine and he made it happen. There is intellectual property on both sides I think. J5 has been very gracious and professional about the rights and he does not share contracted designs without the contracting user's approval. He also allows complete rights to be purchased for a reasonable amount. Furthermore, to make matters more complicated, sometimes artist and client are different countries making for legal shenanigans.

 

[DrStrange]

Good contracts can save a lot of trouble. Write down your agreements, you don't have to use legal help for small things, but put your deal in writing. Every independent contractor should make this a standard practice, not just about copyrights but the whole deal. Even a good email trail can prevent/solve a lot of disputes.

DrStrange

 

[grandgnu]

Hypothetical question..... (please tell me someone gets this reference)

Anyway, not an attorney, yada yada. But my expectation, if I were hiring an artist to bring MY vision into being, would be that the artwork created would be my property. I didn't hire them to make it available to the general public, I hired them to create something for a unique set based on my design specifications. At the end of the day, make sure to have things spelled out clearly at the start, so there is no confusion between both parties on the final product.

 

[stocky]

Hypothetical question..... (please tell me someone gets this reference)

Anyway, not an attorney, yada yada. But my expectation, if I were hiring an artist to bring MY vision into being, would be that the artwork created would be my property. I didn't hire them to make it available to the general public, I hired them to create something for a unique set based on my design specifications. At the end of the day, make sure to have things spelled out clearly at the start, so there is no confusion between both parties on the final product.

One reason I decided to offer Iron Bank sets was because of the fact I realized at the end of the day I couldn't stop anyone making the same design. Granted I am probably in a different league to most as my set isn't from an original concept. I didn't create GoT so I really have no leg to stand on if someone felt like doing the same thing.

While it would be nice to have a unique one off set it would be impossible stop. We've seen it happen before with Toby's black cat set. And there is a great discussion on CT about if it you want to look.

Personally, I feel like the design work is equally owned by myself and J5. I fully understand if this isn't the case. I would never use the artwork in someway without contacting John (I did contact him about letting others use the design before ever offering it). And Id expect the same courtesy from J5.

It also makes me wonder if the powers that be saw my set and decided that I was a good idea and wanted to make retail sets. If they contact the artist (J5) to design it for a ceramic version, do I get compensated?

There is also going to be differences with the artist we hire. Hobby or full time job may change the artist opinion on who the art belongs to and what it can be used for. At the end of the day (like most have already stated) if it's a concern to you discuss it with the artist BEFORE proceeding. If you don't like the answer, seek a new avenue. Or do it yourself.

Btw Gnu I'm not singling you out or anything. Just quoting the last post that had something to do with my post.

 

[grandgnu]

One reason I decided to offer Iron Bank sets was because of the fact I realized at the end of the day I couldn't stop anyone making the same design. Granted I am probably in a different league to most as my set isn't from an original concept. I didn't create GoT so I really have no leg to stand on if someone felt like doing the same thing.

While it would be nice to have a unique one off set it would be impossible stop. We've seen it happen before with Toby's black cat set. And there is a great discussion on CT about if it you want to look.

Personally, I feel like the design work is equally owned by myself and J5. I fully understand if this isn't the case. I would never use the artwork in someway without contacting John (I did contact him about letting others use the design before ever offering it). And Id expect the same courtesy from J5.

It also makes me wonder if the powers that be saw my set and decided that I was a good idea and wanted to make retail sets. If they contact the artist (J5) to design it for a ceramic version, do I get compensated?

There is also going to be differences with the artist we hire. Hobby or full time job may change the artist opinion on who the art belongs to and what it can be used for. At the end of the day (like most have already stated) if it's a concern to you discuss it with the artist BEFORE proceeding. If you don't like the answer, seek a new avenue. Or do it yourself.

Btw Gnu I'm not singling you out or anything. Just quoting the last post that had something to do with my post.

It's been awhile but i remember using 99designs website for a logo and could've sworn the rights were mine after paying the artist