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Responsibility as a designer for employer using licensed photos?

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Community Guru
Tiffany S Member Since: Jan 15, 2016
11 of 24

I'm surprised to see so many people categorically asserting that the designer has no personal liability.

 

Here's the brief summary of copyright infringement from the U.S. Copyright Office:

 

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

 

It would be the designer who was doing those things, regardless of the fact that the acts were performed at someone else's request. Outside a platform like this, it would be standard for someone in the designer's shoes to include a provision in the contract that the employer was responsible for licensing and warranted to the designer that materials she was working on were owned by the client or properly licensed and include an indemnification clause.

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Community Guru
Jess C Member Since: Feb 18, 2015
12 of 24

@Tiffany S wrote:

 

It would be the designer who was doing those things, regardless of the fact that the acts were performed at someone else's request.


Yes and no - the designer's name would not be on the derivative piece, but rather the client's, and the client would be doing the distribution/display/performance/reproduction apart from the designer using it as a profile piece. So the client would be the target of any lawsuits... until they themselves turn on the designer. Contracts are great for that, of course!

 

The lack of such a contract when doing work under Upwork's ToS is just one reason it's important for designers to do their background work and document everything. If the communication between the designer and the client shows that the client misled the designer as to their ownership of the image, then liability is squarely on the client. If the designer is on record as knowing the image isn't truly available, then that's another issue entirely.

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Rene K Member Since: Jul 10, 2014
13 of 24

I think that in court the designer would not be viewed as the one who broke the copyright but the client, provided again that the client is the one who distributes the work.

 

However, it is a good idea indeed for a designer, an editor or a translator to add a provision in their contract mentioning that the final client has the responsibility to make sure that they have all the rights on the work they submit to the contractor. And to add a provision indicating that the client is fully responsible for any liability or expenses borne by the contractor in case of a lawsuit.

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"Where darkness shines like dazzling light"   —William Ashbless
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Virginia F Member Since: Feb 15, 2016
14 of 24

With all due respece to everyone's comments, when I'm working on two visitors guides with a total of over 300 photographs between the two of them (which I do, every year), it is the client's responsibility to assume responsibilty for proper usage of said photos.

 

The onus is not on me, nor will I ever put it on myself to ensure the license and usage of every frickin' photograph I'm sent to work with, because that would be nothing short of insane.

 

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Tiffany S Member Since: Jan 15, 2016
15 of 24

@Virginia F wrote:

With all due respece to everyone's comments, when I'm working on two visitors guides with a total of over 300 photographs between the two of them (which I do, every year), it is the client's responsibility to assume responsibilty for proper usage of said photos.

 

The onus is not on me, nor will I ever put it on myself to ensure the license and usage of every frickin' photograph I'm sent to work with, because that would be nothing short of insane.

 


That's when you get the client to sign an agreement affirmatively stating that they own or have the rights to use the images they've provided. 

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Tiffany S Member Since: Jan 15, 2016
16 of 24

Jess, you state that pretty authoritatively, which leads me to believe you know something I don't.  I would very much appreciate it if you would share your source. I haven't had occasion to thoroughly research this specific issue as I'm usually on the other end of the equation, but as an attorney and owner of a small publishing company turned freelancer, I'm frequently in the position of having to educate clients about copyright issues and I am not familiar with the statutory exemption or case law that lets the designer off the hook in this situation.

 

I'll research it when I have some downtime, but if you have a cite you could save me a lot of time.

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Jess C Member Since: Feb 18, 2015
17 of 24

All I have is my own experience: 15 years in graphic design and hundreds of large projects with sourced photos. I'm meticulous in my documentation on such projects because I've had a couple go south on me where the client was not truthful about the rights they had secured (or not).

 

I have had a client on Upwork who almost insisted I use a photo that I knew he didn't have rights for, but was able to talk him out of it with a better option and my own insistence on not stealing (and calling it that outright, which can be useful!). On projects outside of Upwork, I have a clause in my contract that protects me from the client's screw ups.

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Virginia F Member Since: Feb 15, 2016
18 of 24

Yes? And how did they go south on you ... did the photographers go after you? Somehow I doubt that could happen.  I've never had any such thing happen in my 21 years as a graphic designer ... ever. It is not my responsibility to police my clients.

 

ETA: Actually, I'm gonna go out on a limb and say that the chances of a stock photographer coming after me for misuse of their photo at the hands of my client are slim to none - nor have I heard of it happening to my graphic designer friends. I guess we must all be lucky.

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Jess C Member Since: Feb 18, 2015
19 of 24

It went south on me in that I found out the images I was given were not licensed and the client had no intention of getting a license - which meant that I ended the contract but still got paid.

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Douglas Michael M Member Since: May 22, 2015
20 of 24

René,

 

Tiffany quoted the US Copyright Office:

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

 

Jess pointed out that it is unlikely that the copyright owner would come after the designer unless and until the client tried to shift or share blame (in an argument I suspect few courts would find compelling).

Jess and Tiffany have suggested contracts or other due diligence strategies can address the issues of client responsibility and/or indemnification of the contractor.

 

I'm just underlining that "ma[king] into a derivative work," which is exactly what designers are being asked to do in the cases under discussion, does indeed, on its face, place legal as well as ethical responsibility on the designer contractor

 

Best,

MIchael

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