The Graphistologist undertakes to transfer its exploitation rights over a period of 5 to 10 years for each new contract/quote signed from January 2023. The exploitation rights will be transferred only after written complaint from the client , an additional contract will be attached to the invoice for the service, stipulating all the broadcasting rights he wishes to have, namely:
• Period/duration
• Field of operation
• Price of the service (no supplement will be charged for contracts carried out after 2023).
For services performed before 2023, unclaimed copyright belongs to the intellectual, moral and creative property of Le Graphistologue. The claim of these exploitation rights will involve the signing of a new legal contract for the transfer of rights to be defined according to each person's broadcasting requests.
1. Copyright
The intellectual property code provides that anyone who creates an original work (i.e. any production, whatever the medium, which arises from his unique idea), immediately acquires the status of author of this work and the rights that go with it. Namely, moral rights and exploitation rights.
Moral rights:
These are the rights relating to the status of author, which indicate that this production is the exclusive work of the author. He is the only person who can decide, authorize and prohibit everything that concerns him. The main copyrights are:
• The right of disclosure:
it is he who decides whether he will reveal his work publicly and whether he will authorize its use.
• The right to respect for the name: he has the right to sign his work and demand that it be cited. No one can appropriate it or forget to mention it as the author if it is their will.
• The right to respect for the work: it is the prohibition for the user to undermine the integrity of the author's production against his will.
• The right of withdrawal: He has the right to decide at any time to withdraw his work from any exploitation and distribution.
Moral rights are completely non-transferable, they cannot be transferred to anyone, no matter what we have signed. No contract that provides for the assignment of moral rights can be valid.
Exploitation rights:
These are the rights that make it possible to consider the work as a heritage from which the author can derive a profit:
• The right of representation: meaning the right to distribute the work to the public
• The right of reproduction: that is to say the right to reproduce the work on any medium whatsoever in order to distribute it
• The right of adaptation: it is the right that allows the user to adapt the work to the medium on which it will be broadcast.
It is therefore these exploitation rights that can be transferred under a contract for the transfer of rights. The person who will exploit the work will become a "rights holder", i.e. he will be the person who has the legal right to use the work.
These rights last for the entire life of the author, then 70 years after his death, entrusted to the successive heirs. After this period, the work becomes part of the public domain. Anyone can use it without restriction, even if the moral right to respect the author's name remains valid.Your logotype was created by a graphic designer, it was born from his only idea, know-how and production.
He is therefore the author, and the above rules apply.
So you never buy a logotype, you buy a logotype creation service!
This is also valid for all models, such as models of business cards, flyers and other print or digital media.
2. What is the assignment of copyright?
The assignment of copyright is the contract which aims to clearly define which exploitation rights are transferred to the rightholder. It is a very official contract and must be in writing and signed in due form.Any right that is not explicitly mentioned is simply not part of the rights granted by the author. As a client, if you wish to have more rights than those currently assigned in the contract, you must inform the author and define a new assignment contract with him, for additional remuneration. Because yes, each use is paid for!
Overall, if you order the creation of a logotype and you pay an assignment over 10 years for the distribution of it on t-shirts, and that after 8 years you also wish to distribute it on caps, you will have to inform your graphic designer, who will write a new assignment of rights and ask you to pay a supplement.
Why the transfer of rights is essential?
The transfer of rights protects the author and his work, whether morally or financially. She ensures that he is paid the fair value that his work has for the client who uses it. Same thing for a graphic designer and his logo! Let's say that the creator of the twitter logo, which generates millions in revenue, only got paid $6.
Would you find that fair? Yet that is exactly what happened! If there had been an assignment of rights, this would have allowed this graphic designer to be paid up to the value of his logo today.
The assignment of rights also protects you as a customer! First, it reassures you by setting a legal framework for what you can or cannot do. It also allows you to prove that you are using your logotype while being in your right! A graphic designer who suddenly decides to no longer distribute his logo to the public would be obliged to pay you a financial counterpart, since you paid for this right.
In case of violation…
“Any representation or reproduction in whole or in part made without the consent of the author or his successors in title is unlawful, and punishable according to the laws relating to the offense of counterfeiting. The same applies to translation, adaptation or transformation, arrangement or reproduction by any art or process whatsoever. (Art. L. 122-4 of the CPI)
To make it simpler, anyone who uses a work outside the framework and conditions of the contract defined with the author without his approval commits an offense of counterfeiting punishable by heavy fines, or even prison depending on the case. One or the other of the parties could refer it to a court to assert their rights, knowing that France is one of the countries, if not the country, the most protective with regard to intellectual property.
3. How to create a rights assignment contract?
In view of all that it represents, the creation of a rights assignment contract is an important step that must be taken the time to define carefully. I can only recommend that you read everything it implies before signing, and especially not to hesitate to include uses that you have planned for later, even if you cannot yet execute them current time.
Which medium to use?
The transfer of rights can be simply indicated in the General Conditions of Sale (GTC) of the sales documents (commercial proposal, estimate, etc.). This is ideal in the case of a very short-term sale, for an event for example. Otherwise, in most cases, when it is a sale over several years, a contract is drawn up as an appendix to the estimate and the invoice. I strongly recommend that you read the conditions of assignment of your graphic designer before signing the quote to make sure that everything suits you.Whatever happens, the signature of both parties is essential for the contract to be viable.
What elements should we find inside?
Delimiting strictly precise uses is mandatory, mentions such as "all rights assigned" or "all uses" or "unlimited assignment in time" are worth nothing legally speaking and make the contract void.You must therefore be able to find in your contract of transfer of rights:
• The nature of the rights transferred: representation (dissemination), reproduction, adaptation.
• The domain of exploitation: is it a logo, a website, a flyer… but also on what types of media the work will be used, in how many copies, what geographic extent and for how long.
• The price: only if the graphic designer is declared under an artist/author status. For graphic designers who are service providers, the price of the transfer of rights will be included in the service and will not be invoiced separately.
4. The unlimited transfer of rights, myth or reality?
It is a myth. But… How many times have I heard “I assign my rights in an unlimited way” or “you make a limited assignment of rights? But such a graphic designer makes an unlimited assignment! ”… As said above, “unlimited” has no legal value, and renders the contract null and void from a legal point of view.I'm not throwing stones, it's a mistake that I myself made during my first contracts... At my expense!
A vague practice that distorts the profession of graphic designer.
Some have found a way around this by leaving a legal vagueness with the words "term not determined to date" or "All rights assigned". I deplore this practice which will certainly convince you to sign since there will be no time constraint, but which is unfair to the graphic designer and which distorts this profession of creativity, the sustainability of which is based precisely on these contracts. .
The advantage of a sale over a defined period
Yes, there is, however, a significant advantage in defining a transfer of rights for a limited period:If you want to change / modify your logo, which often happens after the first 5 years of use, and you have paid an assignment of rights over 10 years, you are a total loser, because the years of 'unused will not be refunded to you in any case. If, on the other hand, you paid for a 5-year assignment, you will have paid more fairly for your use of the work.
5. How much does it cost to transfer the rights to a work?
There is no tariff imposed on the transfer of rights, each author is free to transfer his rights at the price that seems fair to him. It is therefore not easy to give a price, the best is still to ask for one or more quotes.
A free price to a certain extent, but regulated!
Even if each graphic designer is free to apply the tariff which suits him, he is still required not to invoice the transfer lower than those imposed by the scale of the Official Journal of May 2, 1987, page 4874. Below these rates, the assignment contract could be declared void by a judge.
Several calculation methods…
• Integrate the price into the package rate or the daily rate
• Apply a percentage to the price of the creation service.
• Follow the scale of the Official Journal by defining a point value and applying coefficients to it. The more the work is distributed, exposed, the higher the coefficient, and the price too. This is the most reliable and fair method, both for the author and for the client.
Whatever the work ordered, your graphic designer must absolutely define an assignment of rights that will regulate its use. Without assignment of rights, you are vulnerable if your graphic designer suddenly decides to forbid you to use it. In the event of voluntary or unintentional violation of the contract, you expose yourself to prosecution for the offense of counterfeiting. You must therefore take special care and attention, and have thought about all the specific uses you are going to make of them beforehand so that they are all mentioned in the contract.
The Graphistologist undertakes to respect, sign and make available a free copyright assignment contract (included in the service) for any request made from January 2023.
Article written and very well summarized by Presse ta Com
Noémie Ciborek – All rights reserved