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Who owns the design? (1 Viewer)

Who owns the design?

  • Customer

    Votes: 27 58.7%

  • Designer

    Votes: 1 2.2%

  • Depends

    Votes: 18 39.1%
  • Total voters
    46
MeridianFC

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I didn't see this discussed anywhere, but thought I would post this as our thought exercise for the day. If I engage a designer to create artwork for chips. Let's say whole chips like Tina or just a label for say CPC and I give some instructions, either general ("make it look like Binion's chips from the 60s", "I want Hard Candy Mafia but with different colors", etc") or specific ("here are the colors and spot patterns and a rough sketch of the label I'm looking for") who is the owner of that intellectual property? Is it the Customer or the designer?
 
My understanding is that it depends on the country where the art is created, as that will determine the copyright rules in effect.
 
You should discuss and agree on who owns the design when you hire the designer. If not stated otherwise, the law defaults with the designer.

I’d certainly expect to pay a little more to own a design, which seems fair.
 
Highli99 said:
If not stated otherwise, the law defaults with the designer.
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Really? I guess most professionals have a strong contract but I would assume that it belongs to the customer. So if I pay a designer to design something, explain what I want/what it should look like, they send me final copies and we agree, they can turn around and sell that product to other people?
 
bigblind said:
If you hire and pay someone for design, customer owns design
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Only under US Copyright. That is not the case under Canadian Copyright laws. If the artist creates the art in Canada, the artist would likely be considered the owner. That's my understanding of it, anyways.
 
There is no substitute for professional legal advice about your specific situation. Intellectual property rights / law is complex and somewhat tied to your local laws.

If the questions around intellectual property ownership is important to you, hire legal counsel in advance. If the cost of professional assistance exceeds your pain point, then the matter at hand really wasn't that important. -=- DrStrange

PS: An opinion poll on PCF is not meaningful legal advice. Our collective "wisdom" isn't worth much at all.
 
You can have a designer sign a Work For Hire contract, which stipulates that you the customer own the IP and the designer makes no claim and surrenders any claim to such IP. Totally normal procedure in the world of the arts. I have used them and been on both sides of them. Completely regular and acceptable. At least here in the States.

(In reality, does it stop someone from using your designs? Not if they want to break the contract. But if you found out about the breach, the WFH contract does give you a clear legal basis to sue... not that you want it to come to that, because that's a pain. Everything is a risk. But is it likely? Anyway, that's poker for ya!)
 
Per Wikipedia:
If a work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:
  • the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
  • the work must be specially ordered or commissioned;
  • there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."
In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins.
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Unless it's specified beforehand, the designer owns the artwork. As a buyer, you are paying for them to create and produce, but not for the artwork itself.
HOWEVER...most designers, myself included, state up front that the design fee includes the transfer of rights upon final payment. In my design business, a contract for EVERY job is paramount, to avoid uncertainties. Here on PCF, it's much less formal, but artwork ownership should always be discussed, not assumed.

Again, most designers I've seen here provide full art at completion, but it's not a given.
 
NotRealNameNoSir said:
So if I pay a designer to design something, explain what I want/what it should look like, they send me final copies and we agree, they can turn around and sell that product to other people?
Click to expand...
If you pay a designer to design something, they are providing a service of creative and production of the item. Unless discussed, the designer owns the just the art, and for that item only. The designer technically could sell it to other people, but only if it contains nothing that infringes on your copyright/trademark.
For example, you hire a designer to make some nice chips that have generic art and denoms. If you haven't agreed beforehand, that designer could sell that art to someone else as well. It's pretty shitty to do, and I wouldn't, but it could be done.
However, if you have a designer make a brochure that has your products and logo, they cannot sell that because it clearly contains copyrighted or trademarked items that belong to you.

Always best to discuss these things before any work begins, and if it is a larger sum of money or important design, draw up a contract.
 
As a former pro photographer working in America, the copyright/ownership defaults to the creator. If you're an employee of a company, the company gets ownership (e.g. Google owns the code written by its programmers), but if you're an independent creative making an original work, it's yours.

You're being hired to create a thing, and then selling a license to use that thing to the folks who hired you, with pricing being determined by the extent of how the thing will be used.

-Architect hires me to shoot building
-I shoot ~10 images
-I license the images to them for use on their website, contest submission, social media, etc...

Often other companies would want to license the images too - construction contractors, structural engineers, etc... It turns out these images can provide further value to these companies, and I retain the right to license them to these parties (unless exclusivity is required by the original client). And who better to introduce the images to these folks than the architect! I'd try to balance giving the architects a discount for add'l licensing to the 3rd parties to keep everyone happy.

--

Peril sets in when 3rd parties grab the images from the architect's website, or get the images sent from the architect. Usually this resolves easily because architects and others in the building trades are very sensitive to lawsuits - did the building fall down because the plans were wrong, the concrete wasn't mixed right, the structural engineer didn't take into account something?...

This completely breaks down in residential real estate. Even submitting images to the MLS to show up on Zillow can involve forfeiture of copyright, and realtors want to put ads in the paper, and on and on...

--

Long story short, sort it out up front in writing! This usually takes the form of "client takes full ownership of artwork upon completion and full payment, files, and other IP related to the chip design and can reproduce without restriction forever. Designer retains the right to display said artwork in their portfolio"
 
I've ran a creative agency for 16 years in the US. This is the definitive answer:

Copyright ownership vests in the hiring party only if the work was created by an employee within the scope of employment, or if an independent contractor’s work fits one of nine specific categories and there is a written agreement stating it is a “work made for hire.” If those conditions are not met, the creator retains the copyright unless it’s explicitly assigned in writing.

In layperson's terms: Just because you paid someone to create something doesn't give you the IP rights automatically. The creator retains them unless there's an explicit agreement to license or release them ahead of time.
 
Highly relevant example:

If CPC runs a design contest for a new stock chip, specified as colors + inlay design, they will need to specify what’s in it for the designer.

I’ve heard the idea of “designer will get a full set of the new chip” so ~1000 chips worth say retail $4000. And maybe street cred, which could raise their reputation, or other soft benefits.

If CPC fully owns the design now, everyone’s probably happy if they sell $50k worth of these chips each year for a decade. Not $50k profit, but revenue.

What if it’s a massive hit, global poker influencers start using them, and all of a sudden there’s $5m of orders?

And Harrah’s wants to use the exact same design for their casino chips that will be made by Paulson? And SlowPlay wants to do a ceramic version to sell on Amazon? All of this would be pure licensing revenue to CPC to use the artwork (think TRUMP steaks… he’s getting paid by a steak company to simply put his name on the product).

Unlikely, sure. But stranger things have happened (read about the person who made the Nike swoosh).

The tricky thing is it’s hard to get this properly sorted out without getting a lawyer involved and ya know what, you just want a fun design contest for PCF folks to be entertained with and to have a fun new set to sell.
 
A fun quirky example of this comes out of Burning Man, the big desert festival. All media created there is legally co-owned by the Burning Man org. It’s right there in the terms and conditions you agree to when you buy the ticket.

The explicit purpose of this has been to prevent and photos or videos created there from being used in advertising or other unsavory ways (porn comes to mind).

If you tried to promote your Hydrating Athletic Drink Powder using a reel shot at Burning man and posted to social media their lawyers would swoop down with great flaming swords and smite you. Because they own it too and won’t allow it to be used that way.

Casual YouTube videos are mostly tolerated, along with fashionistas posting on the ‘gram, but you’ll be hard pressed to find any commercial usage of content from “the playa.”
 
I would imagine that a US court would rule that the customer who contracted the design has rights. The artist is a contractor. It would be like going to a sign maker and asking them to design it. They couldn't sell the same design to someone else. They could use that sign for other creative purposes so long as the changes are significant. That would be covered under fair use. If the work could be considered generic, it would not be protected. An inlay with just numbers is not protected, but a logo with the name of your chips/game would be. This is my understanding.

That said, without a copyright, non-commercial reproduction would likely not be protected. Now if your custom chips showed up in a storefront with your exact design, you might have a case.
 
Agreed you should get it in writing. Personally I’m not paying any designer to make a creation based upon my ideas unless it is clearly understood that I retain sole rights over the finished product and am given unrestricted copies of digital design files, such as ai files, to do with as I please in the future.
 
TLDR - get it in writing that you, the client, own the design / final artwork.

While it's probably rare among designers working with poker chips, in other mediums it's very common for pros to decline to work with anyone who wants to own the artwork. They'll either refuse or require a 5x+ fee buy-out.

It's unintuitive, but simply part of the law in America governing creative works. And importantly is very simply avoided by simply getting it in writing as a contract supersedes the 'default.'
 
Gus said:
TLDR - get it in writing that you, the client, own the design / final artwork.

While it's probably rare among designers working with poker chips, in other mediums it's very common for pros to decline to work with anyone who wants to own the artwork. They'll either refuse or require a 5x+ fee buy-out.

It's unintuitive, but simply part of the law in America governing creative works. And importantly is very simply avoided by simply getting it in writing as a contract supersedes the 'default.'
Click to expand...
I think with photography, it's far more common (and expected) that the photographer owns the photos, and the images must be licensed/purchased for use, at a much higher rate if the client wants sole ownership.
With graphic design, art direction, etc., it's a bit different. The agreement to hand over final art to the client is almost universal, and the design fee is not inflated to cover this. If I'm designing a flyer or website for a client, I'm not charging less if I want to keep the art. I don't want it any more than the client wants me to own it, and I'm not charging extra for them to have it. In general, the base design fee covers full transfer of art.

But, like you said, nothing should be assumed. Get it in writing.
 
Last edited:
If I were designing something for someone, I would want some sort of agreement in writing. If I imagine an agreement I would likely include the statement 'creative works are the property of the 'client''. Good clients would want this clarity before starting a project as well.

Just address it ahead of time.
 
NotRealNameNoSir said:
Lol, what recourse did we ever have against Chinese companies??
Click to expand...

:LOL: :laugh:

Simpsons Thats The Joke GIF
 
You have to look at your agreement (and you should have one). When hiring people, you want them to sign a "work for hire" agreement. In that agreement you specify that everything they create belongs to you. They have no rights or claims to ownership, copyrights, trademarks, etc.
 

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