FFEESSPPA A TTrraaddee SShhoow w..
Running Time 5:47
W
Waattcchh aa sshhoorrtt vviiddeeoo ooff aa rreecceenntt SSG GIIA A TTrraaddee SShhoow w..
Running Time 6:05
when you pay the artist, you have not purchased the copyright. Figure 12.6 on the next page is a Transfer of Ownership that you should use for every piece of artwork you purchase from an independent artist!
In-House Artists
When the artist who creates the design is an employee, the work relationship is called “work for hire” and you, as the employer, own the copy-right.
The following excerpt from Section 201 of the Copyright Law explains this:
(b) WORKS MADE FOR HIRE - In the case of a work made for hire, the employer or other per-son for whom the work was prepared is consid-ered the author for purposes of this title, and, unless the parties have expressly agreed other-wise in a written instrument signed by them, owns all of the rights comprised in the copyright.
What if you commission an independent artist and tell him that you want the piece to be done as a work for hire? Be sure you put the name of the piece and the words work for hire on the check you pay him with. According to the copyright law, then, you would own the artwork!
In summary, if you had an employee create the art, you own it. If you bought it from an inde-pendent artist and got a transfer of ownership, you own it. If you bought it from an independent artist under a work for hire relationship, you own it. If you gave a transfer of ownership to the customer, he owns it.
How to Get a Copyright
As previously mentioned , the copyright auto-matically happens when you create a design. The act of creating it and then putting either a C with a circle around it “©,” the word “Copyright” or the abbreviation “Copr.” and the name of the copy-right owner are all you need.
For greater protection and advantages should you have to sue someone, you may want to regis-ter the copyright with the Regisregis-ter of Copyrights, Library of Congress, Washington, DC 20559. In fact, the copyright must be registered before you can file a lawsuit on a copyright infringement.
To register the copyright, you will need a copy of Form VA (for visual arts). Figure 12.7 shows a sample of the six-page form VA.
Basically, you can download the form from www.copyright.govand then submit it with two copies of the work or a photograph. The Library of Congress will “deposit” the work in their archives on that date. A copyright will expire 50 years after the owner dies.
If you don’t register the work, you can only sue someone for actual damages (income or other benefits lost as a result of the infringement). If the work is registered before an infringement occurs, you can sue for statutory damages ($50,000 per infringement) and your attorney’s fees!
Where to Learn More About Copyrighting
Write or call the Copyright Public Information Office at (202) 707-3000 to receive a Copyright Information Kit or simply do your homework online to learn more. The Copyright Office will 12.7 The United
States Copyright office has an extensive web-site. To copyright a design use form VA from the Copyright Office. This form is available online at www.copyright.gov.
in full payment for all right, title and interest (including copyright) of every kind whatsoever for the following work:
(name and description of work)
1.________________________________________________________
2.________________________________________________________
3.________________________________________________________
4.________________________________________________________
The undersigned warrants originality, authorship and ownership of the work, that it has not been heretofore used or published, and that its use or publication will not infringe upon any copyright, proprietary or other right.
_______________________________ ______________________________________
Witness Artist (Print Name)
_______________________________ ______________________________________
Date Address
______________________________________
______________________________________
City
______________________________________
State ZIP
______________________________________
Phone Fax
______________________________________
Date
______________________________________
Artist Signature
12.6
answer specific questions, but will not give legal advice.
You will probably not want to copyright every design. Some you will create for the customer and gladly give the rights to them. Others that you invest a lot of time in may be worth copyrighting.
Some designs you will just want to place the copyright notice on and others you will want to file for better protection. If you have specific questions about the process, consult a copyright, patent or trademark attorney. There are also excellent books on the business side of artwork that are available at bookstores, art stores or industry suppliers (12.8) and there is a wealth of information online.
Who Owns the Artwork, Separations, Computer Graphics and Screens?
Other than the Copyright Law, the industry is governed by what is known as the Trade
Standards. These are the established standards that are used by the printing industry. Figure 12.9 shows a modified version of the standards that are used by the National Association of Printers and Lithographers. These standards have been changed slightly to include items of particular interest to screen printers.
If you look at Number 4 and Number 6 you will see that basically you own everything unless otherwise agreed to in writing. Unfortunately, customers often think they own everything because they paid you for something and expect something in return. What they actually pay you for is your labor to make the screen, create com-puter graphics, do the color separations, etc.
All customers really own is what they brought you. If they initially came with a small business card, then when they leave because the price is
better somewhere else, all they get is the small business card.
You own the mechanical items, like the screen frame, films, separations, vellums, drawings and graphics. The customer may own what is on these items, but you own the physical items.
Invoicing Is Important
The key to having less confusion is to write invoices properly. You need to specify “screen set-up,” “screen preparation,” “artwork prepara-tion” or “color separation labor.” This way, you are just charging for the labor and not for the physical piece.
What if the Customer Claims He Owns the Work?
What if the customer brings you a design to print but doesn’t really own the rights? This can happen very easily and if the design is not well known, you are the innocent infringer.
Number 22 of the Trade Standards is called an indemnification. This is also known as a “hold harmless” agreement. Basically, the customer is guaranteeing that he has the rights to the design and will hold you harmless if there is a lawsuit.
You should also get a written representation that he does have the rights if you are in doubt.
What if You Change a Design Slightly We could take up this entire book talking about copyrights. In a nutshell, it is a misconcep-tion that if you change a design 20% then you are not breaking the law. In general, what the Copyright Law states is that under a “side-by-side” comparison, are there “substantial similari-ties.” This means that if you alter a design just 20%, then 80% of it is a knock-off!
By no means are we implying that you should copy someone else’s work. We are just trying to clear the air on the “20%” rule. There is no 20%
rule!
Here are key points to follow:
1. Always purchase all rights to designs from freelance artists unless you have a license or royalty arrangement with them.
2. Put the copyright notice on every piece of artwork you purchase or create. This includes design sketches, proofs, comps, etc. Just get a rubber stamp made that you can use to
“notice” everything!
3. If you occasionally contract out your printing to outside screen printers, make sure that you have a written agreement that states you are buying all rights to designs they do for you and you are purchasing the color separations, comput-er file, etc. They may or may not want you to pur-chase the screen (if they reclaim or use retension-able frames), so you want to have it understood 12.8 The bookstore
carries dozens of books about the busi-ness and legal side of doing artwork.
Experimental work performed at customer’s request, such as sketches, drawings, computer graphics, screens, presswork and materials, will be charged for at current rates and may not be used without consent of the printer
4. PREPARATORY WORK
Sketches, copy, dummies and all preparatory work created or furnished by the printer, shall remain his exclusive property and no use of same shall be made, nor any ideas obtained therefrom be used, except upon compensation to be deter-mined by the printer.
5. CONDITION OF CUSTOMER SUPPLIED ARTWORK
Estimates for printing are based on customer supplying proper “scanner ready” or computer graphics artwork that conforms to the printer’s specifications.”Additional time needed to make artwork ready shall be billed at current rates.
6. PREPARATORY MATERIALS
Artwork, type, screens, negatives, positives, color separations, computer graphic files and other items when supplied by the printer shall remain his exclusive property unless otherwise agreed in writing.
7. ALTERATIONS
Alterations represent work performed in addi-tion to the original specificaaddi-tions. Such addiaddi-tional work shall be charged at current rates and be sup-ported with documentation upon request.
8. PROOFS
Proofs shall be submitted with original copy.
Corrections are to be made on “master set”, returned marked “O.K.” or “O.K. with corrections”
and signed by customer. If revised proofs are desired, request must be made when proofs are returned. Printer regrets any errors that may occur through production undetected, but cannot be held responsible for errors if the work is printed per customer’s O.K. or if changes are communicated verbally. Printer shall not be responsible for errors if the customer has not ordered or has refused to accept proofs or has failed to return proofs with indication of changes or has instructed printer to proceed without submission of proofs.
9. PRESS PROOFS
Unless specifically provided in printer’s quota-tion, press proofs will be charged for at current rates. An inspection sheet of any form can be sub-mitted for customer approval, at no charge, pro-vided customer is available at the press during the time of make-ready. Any changes, corrections or lost press time due to customer’s change of mind or delay will be charged for at current rates.
percentage tolerance of overage must be doubled.
12. CUSTOMER’S PROPERTY
The printer will maintain fire, extended cover-age, vandalism, malicious mischief and sprinkler leakage insurance on all property belonging to the customer, while such property is in the printer’s possession; printer’s liability for such property shall not exceed the amount recoverable from such insurance.
13. DELIVERY
Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B.
local customer’s place of business or F.O.B. print-er’s platform for out-of-town customers. Proposals are based on continuous and uninterrupted deliv-ery of complete order, unless specifications dis-tinctly state otherwise. Charges related to delivery from customer to printer, or from customer’s sup-plier to printer, are not included in any quotations unless specified. Special priority pickup or delivery service will be provided at current rates upon tomer’s request. Materials delivered from cus-tomer or his suppliers are verified with delivery ticket as to cartons, packages or items shown only. The accuracy of quantities indicated on such tickets cannot be verified and printer cannot accept liability for shortage based on supplier’s tickets. Title for finished work shall pass to the customer upon delivery to carrier at shipping point or upon mailing of invoices for finished work, whichever occurs first.
14. PRODUCTION SCHEDULES
Production schedules will be established and adhered to by customer and printer, provided that neither shall incur any liability or penalty or delays due to state of war, riot, civil disorder, fire, strikes accidents, action of Government or civil authority and acts of God or other causes beyond the con-trol of customer or printer.
15. CUSTOMER-FURNISHED MATERIALS Garments, stock, screens, computer graphic files, film, color separations and other customer furnished materials may be used if they conform to printer’s specifications. Additional cost due to delays or impaired production caused by specifi-cation deficiencies shall be charged to the cus-tomer.
16. TERMS
An advanced deposit of 50% of the total order price is required on all custom orders. Printer will not commence work until this amount has been paid. Unless otherwise arranged, buyer shall pay the balance due on the order at the time of delivery.
19. SUBSTITUTIONS
Printer reserves the right to substitute materi-als of equal or better quality with notification, unless advance notification is previously agreed to in writing.
20. REJECTS
Buyer shall have the right to purchase reject material at a reduced cost to be determined by printer. If buyer declines to purchase rejects, print-er has the right to sell them as seconds or irregu-lars in any manner he sees fit. If buyer provided the goods to print on he shall be entitled to all rejects. Reject rates on buyer’s goods shall be within excepted industry standards. Printer shall not be obligated to purchase rejects from buyer unless a specific reject rate ceiling is agreed to in writing.
21. PACKAGING
Unless otherwise noted, all items shall be
“bulk” packaged. Individual folding, tagging, bag-ging, etc., shall be charged at current rate.
22. INDEMNIFICATION
The customer shall indemnify and hold harm-less the printer from any and all loss, cost, expense and damages on account of any and all manner of claims, demands, actions and proceed-ings that may be instituted against the printer on grounds alleging that the said printing violates any copyright or any proprietary right of any person, or that it contains any matter that is libelous or scan-dalous, or invades any person’s right to privacy or other personal rights except to the extent that the printer has contributed to the matter. The cus-tomer agrees to, at the cuscus-tomer’s own expense, promptly defend and continue the defense of any such claim, demand, action or proceeding that may be brought against the printer, provided that the printer shall promptly notify the customer with respect thereto, and provided further that the print-er shall give to the customprint-er such reasonable time as the urgency of the situation may permit in which to undertake and continue the defense thereof.
12.9 Print this form on the back of your work order and invoice for everyone to see. Put this on your website. This will become a legal binding part of the order.
You will be glad you used this!
that after the job is done, the screen is immediate-ly reclaimed. This will prevent a screen printer from going after your account.
4. Print the Trade Standards on the back of your work order and have the customer sign the work order when he places the order. Give him a copy of the signed order as confirmation.
Make sure to publish this on your website.
5. Quit trying to find ways to change someone else’s work so you can claim ownership.
Do what they did: Pay for an original piece and protect yourself with proper registration and notices.
Trademarks
Trademarks are another gray area. What appears to be a simple copyright could actually be a trademark. While a copyright gives you the right to control the copying, a trademark tells the world that someone owns the design. Typically, a logo has a trademark, while a general design has a copyright. A design can also have a copyright (for the design) and a trademark (to show ownership).
If you infringe on a trademark and confuse the public, the courts will say you could be prosecut-ed as infringer. This means that no matter how much you change a trademark, if there is still a likeness or “likelihood of confusion,” you lose.
Licensing
Large printers make a lot of their money on licensed products, whether it’s major league sports or just universities. Licensing is actually its own industry with trade shows and trade maga-zines. Appendix A has a listing of licensing agen-cies and publications.
It may not be as hard as you think to get a license for the local college or team. Many uni-versities work through license brokers who handle a number of schools. They may want an advance against royalties that could range from a few hun-dred dollars for a local school to hunhun-dreds of thousands of dollars for major league sports.
They will also want to approve the garment, the graphics and you. You’ll probably have to supply a financial statement and references. Make sure you can produce as promised.
In return, you will pay them 7 ½ -10% for the privilege of selling merchandise with their logo on it. Once you get your first license, the next will come easier because you have a track record.