So you’ve just gotten a killer brochure designed. You can’t wait to print it and start using it. But you’re also thinking long term…what if, in a few months, some of the information needs to be changed?
So you decide to ask the designer for the native or source files (i.e. the program that the file was originally built in, and is editable).
And they happily say…no.
Wait, what??
But you hired the designer, so you should get whatever files you want, right?
Or maybe, since you paid for the design work, you should outright own it?
As Stephen Colbert says, you can’t argue with that logic.
But these are common misconceptions that both graphic designers and clients alike fall prey to. Despite there being a robust debate on the web, there’s really only one correct answer.
I hate to break it to you, but under US Copyright law, the designer automatically owns all rights to the work they do.
That’s right. All rights and ownership belong to the creator of the work (i.e., the designer). Automatically. They don’t have to do anything except…make stuff.
The one exception to this is work-for-hire, which basically means that if a designer is your full-time employee, then any work they create is yours. A freelancer, unless specifically stated in your/their contract, is NOT a work-for-hire.
So if the proposal or contract doesn’t specifically state that some or all of the rights will be transferred to you, you are only implied the right only to use the work or reproduce (print) it. And even that should be spelled out.
Under US Copyright law, the designer automatically owns all rights. Click To Tweet
How does copyright=native files?
I had one client who was adamant about getting the native files for work I’ve done. I calmly explained to them how copyright works, and that although I don’t usually give the native files away, I’d be happy to do so for an additional fee.
This client was stunned. They claimed that all their other designers “didn’t have a problem” with giving up their native files.
Well, maybe they should.
According to AIGA, the professional association for design,
“copyright is the exclusive right to control reproduction and commercial exploitation of your creative work.”
So giving away native files automatically becomes a copyright issue.
Copyright actually refers to a bundle of rights.
There are 1) rights to display work, 2) rights to reproduce work, and 3) rights to make adaptations (derivative works).
Typically I give the first two to all my clients; I don’t care how often they display my work, or how many copies they have printed. What I normally don’t give away is the right to make changes. And the only reason to have native files is to make changes.
The common exception to this rule is for matters of brand identity, such as logo design (which the company will trademark as their own) or websites, which by nature must be updated frequently.
What’s the big deal?
The main reason why professional designers don’t give away their source files is because the client is paying for the final work, not the tools to make it. A lot of clients may think that access to native files should be included, and don’t see it as an extra thing.
The client is paying for the final work, not the tools to make it Click To Tweet
But it is.
The best analogy I can think of is going out to dinner. Me and the hubby love the Cheesecake Factory. But when we pay $20 for our medium-rare Kobe burger with Cheddar, all we get is that one meal for that one visit. Can you believe it?
The price doesn’t include the chef coming out, giving us his recipe, utensils, and ingredients to take home, as well as a tutorial.
What a rip off.
Yet millions of people, everyday, happily go to restaurants and other service industries, where they get “ripped off,” yet expect something different when it comes to designers, even though it’s the exact same thing.
You, as the client, are paying for the delivery of the final design product. Nothing more, nothing less.
Another client I have completely understood this concept. I designed a handbook for them, and they inquired about getting the InDesign (source) files.
I explained how this would be an additional fee, and while they were understandably disappointed, they respected my position and didn’t argue the point further. A few months down the road, they were ready to purchase the native files and rights from me.
One last thing to consider, and I’ll quote from breakawaygraphics.net because this was so spot on :
An Independent Contractor is commissioned because the work requires significant artistic skill.
The Designer supplies her/his own tools, performs the work at her/his own office, works for a relatively short time on a project-to-project basis, and controls when, how or how long he/she works. Typically, in this arrangement, the client has no part in the Designer’s business practices, does not provide the Designer with employee benefits or contribute to his/her unemployment or worker’s compensation, and most importantly to Uncle Sam, the client does not treat the Designer as an employee for tax purposes.
Independent Contractors pay self employment taxes and foot the bill for health insurance, technical maintenance, tools required for the trade, and provide a valuable service to their clients.
Take a look again at all a freelancer does. I’m not trying to throw a pity party, the above is just factual, and should be compensated.
Because let’s face it; asking for source files is extra, not normal. So let’s stop normalizing it.
Have you ever run into a sticky situation involving copyright issues? How did you resolve it?
*LEGAL DISCLAIMER: I AM NOT A LAWYER. Any information presented here is what is readily available in the public sphere. Please do not contact me with questions about your specific case, I will tell you exactly what I tell everyone: ask a copyright lawyer. Saved you an email 😉
Sheila Patterson is the owner and Creative Director behind Apex Creative. GCU professor by day, brand identity expert by night, she loves all things related to design. When she's not creating amazing logos and websites, you can find Sheila tormenting her husband and two feline furbabies, catching the latest Game of Thrones episode, or reading a good book.
Naps are nice too.
69 Comments. Leave new
Love the Cheesecake Factory analogy!!! Great read for both designers and clients! Perhaps i should send a copy of this article to all new and prospective clients 🙂
Thanks for reading! Sure thing, please do that, we need to educate more clients *and* designers about this issue 🙂
Tell me about it, sometimes i feel like i am on debate team against a client minus the whole throwing paper across or swearing that is.
I know, right?!
Sheila, you and I must cosmically be on the same page, because I wrote a post about spec work here: http://www.designcrawl.com/spec-work-arch-nemesis-designers-everywhere/ It goes along the same lines of valuing our work. We own the rights to it, and spec work takes those rights away. Great read Sheila!
Hi James, thanks for reading! Yes, I just read your (excellent) article on Spec work (boo hiss!), and Tweeted it. 🙂 In fact, I was thinking about writing an article here soon about spec work as well, since it’s so prevalent in our field. But when it comes down to it, I think the fault ultimately lies with us, the designers.
My client who I’m in disagreement with about the copyright, he only thinks he’s right because every other designer before me trained him that way. It’s up to us to (re)train our clients 😉
Sheila…wait…are you saying that my all time favorite burger “Le Big Mac” is a rip off?!!! Well…it is, because I could make myself one at home for free! What am I paying for then? You’ve made quite a point. Thumbs up!
LOL, you are absolutely right, Lionel! I’m afraid you’ve been ripped off this whole time for your Le Royale with cheese 😉 Thanks for reading!
If you have ever heard the term “first reproduction rights only” then you would know the answers… The Graphic Artists Guild guidelines state the client is purchasing the rights to the first printing of the created document only. If you are asked to give up those rights it should be reflected in your pricing. Unless you are an employee of the end user, the work basically belongs to you (providing you created it on your computer, not theirs).
Interesting, I didn’t know that (about first production rights)! Thanks for sharing
Granting first reproduction rights only is important and copensation, even for a FRRO license should be to scale with the initial run. For additional use it comes down to creativity, skill, and derived value. A client who only needs a run of 5M pieces derives less benefit from a creative work with a run of 1MM. The client with a budget/need for 1MM pieces also has the wherewithal to hire a very talented creative…should that creative be you, you should charge appropriately. The up to 30x allowance stated in AIGA handbook is to cover the disparity between a local buy and international use, and for the kind of use.
Thanks for sharing, Daniel, that’s very interesting and makes sense. I could see how for much larger companies and campaigns where GAG allows up to 30x would be appropriate; just seems weird to those of us who are used to working with mom and pop type businesses 😉
This can be a sticky issue for freelancers and companies alike. Thanks, Sheila, for shedding light on the legal aspect. I am pleasantly surprised that freelancers are protected in this way.
You’re welcome, Kim, thanks for reading!
A great read. I’m endlessly amazed at the number of clients that ask for “editable” files. If you could create it yourself then you wouldn’t need me.
YES.
Great article, Sheila! I just had this issue come up with a client. I tried to educate them about the copyright laws pertaining to graphic designers but it was an awkward conversation. Unfortunately, since most designers give their native files away for free, clients have come to expect it. I’m not sure it’s worth losing a client over.
I’m curious as to what others feel is a reasonable fee to charge clients for native files. Is 50% of the original design fee fair? For example, if the client paid me $1,000 to design a brochure, they would pay an additional $500 to buy the native files. I personally feel that the fee should be high enough to discourage clients from buyouts.
Hi Lori, thanks for your comments!
Yes, it’s always an awkward conversation, unfortunately. But, I think if we adjust our framework, it might be easier. Instead of thinking that we’re denying them something they’re entitled to, act like it’s an extra service (which it is). We all need to train our clients as to what is acceptable and what isn’t.
Hopefully we’re all at a point where, if someone was demanding work for free, we’d say, “adios.” I can’t tell you what to do, but I personally don’t have a problem turning someone away who’s demanding native files for free, since it is basically asking something for nothing. It’s ludacris.
As for the fee, I personally charge between 50% of the total project cost. But the Graphic Artist Guild allows up to 30x the amount for source files, which I find a bit extreme, but to each their own. I guess it just depends what native files worth to you, and to the client.
Great article! I’m loving the content you’ve been putting out there. Well done!
Thanks, Trish! 🙂
This topic has been beaten to death in this area and other creative areas.
But it is so important – it bears repeating to every new design or production generation. Especially since they tend not to teach this in design school.
However – it’s also a client education issue. Most clients don’t understand the rules – or will choose to ignore them.
But . . . and a big but!
Many designers also don’t understand the rules when they apply to printing.
A printer just delivers a completed job or project to a client or designer. The intermediate or archived or retouched files belong to the printer.
If a client or designer expects a printer to archive files – forever – or release copies of those files at will – it must have been in a contract upfront.
Hi Stu,
I can’t say this topic has been beaten to death, because so many designers and clients alike are clueless about it! But you’re right, it IS important and regardless, needs to be repeated.
The same is true when one uses a photographer . Good example is wedding pictures. The photographer owns the pictures, and can do with them whatever he/she pleases.
Great point, Thomas!
Sheila, You are correct! This was one of the best learned lessons I received during my studies at AIU; where I received my Bachelor’s degree in Graphic Design.
Hi Cynthia,
I’m glad they taught you that at your school, I never heard about this until I did my own research!
Sheila, i’m wondering if that could apply to webdesign as well…when clients want to have access to all the code running their website etc. Instead of having their basic interface for subtle changes i.e articles etc. Let me know what you think
Good question. I did some poking around the intertubes, and unless the code is open source, it belongs to the designer/programmer.
But then the question is, can the client access and modify it, since it’s code running their site? Practically, yes they can, but legally (unless given permission), the answer is no.
I personally give clients full rights concerning this, simply because the nature of a website should be dynamic and not static. We both know they’ll need to update their site, add content, make changes etc., and most are smart enough not to touch the code.
I just came across this article as I was doing some research. Great stuff! I have a related-but-different scenario. If design companies A and B create proposed designs for a client and client chooses company A, is it unethical for the client to share company B’s (losing bidder) proposed design with company A (winning bidder)? Or is the client free to do with the proposals what it wishes? Thanks!
Hi Andrew, thanks for reading!
Actually what you’re asking sounds more like spec work (speculative work), and is considered unprofessional by most designers and firms. If a client is paying two designers to do work, they may use whoever’s work as they wish, but both designers must be paid.
Now, if you’re talking about bidding/pitches, that’s another issue. Again, most professional designers and agencies have a clause that all information/pitches within the bid are their intellectual property and may not be transferred etc, so if a client was in breach of that there would be legal action. Until a bid was actually won and the design firm paid for said designs/ideas, the rights belong to the firm.
Hope that helps, thanks again for reading!
Great article. Any advice on how to deal with a client that says, “Our logo and our designs are all over your video, so you don’t own the video you made for us, we do”? This hasn’t happened to me yet, but…
GREAT Post!!! Keep up the good work!
Excellent article! Thank you for putting this out there. All these things I knew based on my own research over the years, but yes… it’s an on-going ridiculous problem. Too many insecure designers are giving their work away for free. I have it spelled out in my working terms so clients know right from the beginning… I imagine it weeds out all the energy-draining ones. I no longer run into the issue, thank God. But we designers all need to band together and bring the value back to our industry!
Thanks for reading, glad you enjoyed! I know it’s an oft-repeated message, but I agree, it’s important to pound this into people’s heads. You’re right, it’s all about educating our clients, and each other.
Glad I found your article. How does this apply to a client that asks for a post card design and a mailing. They give you scrappy pieces of paper, correspondence, invoices, etc. for you to pull address from. You put hundreds of names into a database so that you are able to print labels and post their mailing (a post card you have designed). But now the client wants the native database of addresses. Do I have to give them this native file?
First, I hope you’re charging for your time and then some for doing crappy data inputting work! I personally would refuse to compile the list for the client; that’s the client’s job. But anyway, I actually am totally fine with releasing the native files…as long as they pay for it, since it is something extra and has real worth. Industry standards vary widely, it’s up to you to decide what feels fair. Some people charge 25% of the total project cost, all the way up to 300%. It’s completely at your discretion, since the files and rights belong to you.
I have worked for a publisher for 3+ years as a freelancer on 3 different magazines. He just sold his company and part of the terms were to give all of the native magazine layout files AND client ad files to the new owners. I told him that they were mine. The high res pdfs for the printers were his. He wants to work something out with me cause his deal is done. I am not sure what to charge him. There are hundreds of ads and 25+ magazine issues. Any advise is appreciated.
Hi Jackie, thanks for commenting! That is a tricky one, he probably sold the company without thinking that he would have to pay for those rights. I can’t tell you what to charge him, as the price for native files can be anywhere from 10% of the project cost to many hundreds percent. Depending on the project, my normal source file rate is 50% of the project cost. Hope that helps
Thank you for your help. I like the idea of doing a percentage since it would be easy to look up the invoices and apply the charge. I think I have to look into the time it will take to gather up the files and clean up a few of them too. Thanks again!
My pleasure 🙂 Let me know how it works out
Love this article and have found it very helpful as I research a current issue with a client. He has a book he self-published. He owns the copyright to the content and illustrations already, but the manuscript needs edited and the whole book needs redesigned. The edited manuscript will be done on MS Word and given to him, but the layout is on InDesign. He thinks he’ll buy InDesign and then do any additional editing on his own in the future. I offered to charge him 150% of the project rate for the native files but he’s refusing because he owns the copy right to the content. He does not want my contract to be as an independent contractor but as a work-for-hire. Curious, but how would you reply?
Hi Angela, thanks so much for reading! Glad you enjoyed and found it useful. That’s an interesting question. Yes, he owns the copyright to the raw text, but the layout/design of that text belongs to you. If he’s refusing to pay for the native files, you can just give him his Word document back.
For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:
1. the work must be “specially ordered” or “commissioned.” What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and
2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and
3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:
(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., “a secondary adjunct to a work by another author” such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).
I find people like him are not clients I would want to work with, as they do not value the work, your time, skills, or knowledge. You should ask him why he wants the native files for free, since if it’s free, it’s not worth anything. Him wanting them so bad is evidence they are worth something. If they’re worth something, you should charge for it. Hope that helps.
Great Article! I was just asked by my client if they can have the native files (indesign) to play around with the photos and send the artwork back to me to finalize. I would rather have her purchase my native files for a fee, reguardless if she plans to return. I have hear this one to many time and have not had a successful outcome.
My question is, What contract do you use, or what should it say to be legally binding? I am not finding much online to use as a contract template.
Thank you!!!
Hi Kristin, thanks for reading!
this sounds crazy, but you actually do not need a contract to state you reserve the copyright and ownership of all native files–they’re automatically granted to you, the designer, by US Copyright Law. I personally spell this out in my contract, just so we’re crystal clear. Hope that helps.
designed a tattoo for someone. now i see that person took that design and is selling it on items online. it was not a work-for-hire situation at all. it was something i created and actually now there is a second tattoo that i designed for this person that he is now placing on items to sell. this person has no right to file copyright or trademark to something i was not hired/paid to do or allow for. what legal language can be stated to this person?
side note: i was never told by this person that either design would be used this way – only as (one tattoo) in honor of an personal experience and (the other tattoo) in memory of someone passing away. now i see they are both being replicated in various ways to be sold.
Hi Tracey, thanks for reading! Honestly, this is beyond my knowledge on this topic. It might be a good idea to contact a copyright lawyer if you’d like to pursue this, but it may be too much of a hassle. Sorry I can’t be of much help.
Hi Sheila,
I came across your article today and I’m so glad I did! I have several clients and one of them wants me to design a logo for his business. I did logos before but this time I was curious about my rights as a logo designer. I asked someone who worked in the field for two decades but he didn’t think the artist owned the rights. I didn’t believe him so I did some research and voila! Here I am! Thank you answering my question.
You’re welcome, glad I could help! 🙂
do the same rules apply to creating videos for YouTube? I created a video for a local franchise. The national franchisor loves the video and wants to make it available to all its franchisees nationwide for free. Thoughts on how to approach this?
Hi M, I’m 99.9% sure US Copyright applies to all forms of media created. As long as you’ve procured the rights to the script, music, etc that are within the video, the video is yours.
Thank you, I loved this post! It was concise, clear, & to the point. No dancing around a lot of overblown info. You laid out the facts, bottom lined it, no confusion. And I had to laugh when I saw the breakawaygraphics.net quote because I’d just finished reading that before I found your post. I’m new to freelancing & I was researching a lot of areas, this included, so your post was most welcome.
Hi Jericho, thanks so much for reading and for your kind words! Copyright definitely be a very confusing topic, that’s why I wanted to write a very straight-forward article about this topic. It is so important for designers, and clients, to know their rights so I’m glad to hear it made sense to you 🙂 Good luck with the rest of your research, let me know what else you find
HI Sheila,
what a good article!
But what about the re-print job? Say, the customers orders to design a brochure/menu for printing and happily pays for that. I do my job and send hi rez PDF. But if in 6 months the customers decides to reprint the job without any changes. Do I, as a designer, have any rights in getting my commission?
Thanks!
I am customer who hired someone to design a logo and other artwork. I am in the same boat and that is how I stumbled across this site. I would say most of what has been said here makes sense to me now but why leave a client with a sour taste in their mouth especially since you are in the customer service business? Since you designers have this position and are constantly finding that the expectation from customers is that they get the master files then isn’t it better to disclose upfront to the client before they hire and pay for your services? This way everybody knows what to expect up front and we can subsequently maintain good business relationships after the transaction is over. something to think about.
How come you didn’t quote the actual copyright laws in which you were refering too? The part about work for hire actually says otherwise. Unless a contract says otherwise the person whom the work was prepared for holds the copyright.
201 Section b) ” Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”
http://www.copyright.gov/title17/92chap2.html
It says “or other person” and nothing specific about being an employee vs freelancer.
I think you’re getting work made for hire (which is very specific and the definition is hardly ever met) vs original work made by someone. Whoever makes something AUTOMATICALLY owns the copyright, doesn’t matter if they’re doing it for money or not. Rights can be bought or released, but they automatically belong to the designer/painter/writer/author/photographer.
Hi Sheila,
Your article is amazing!
I don’t know if all of these applies to me exactly, but it helped a lot.
I am a visual artist, specialized in crochet designs (specifically appliques). I create the pattern and the actual applique from scratch. Clients usually show me a clip art (found on internet) and request if I can do it in crochet for them. I do it, sell the finished piece to them and then put it to sell in my store too.
Well, I have a client that sell children’s clothes and is using my appliques to add to her items. She requested a design based on a picture of a football character logo she found. I worked a lot creating this difficult request, but finally did something that she was pleased with. I follow the same steps as always, sell the piece to her and uploaded it too to my store. Then, she send me a message asking me to remove the applique from my store, because she wants it to be an exclusive design for her…(for free, of course). As if she is assuming the applique design is hers…forever ….
It doesn’t seem right to me. I know is a different kind of art…but the same problem in some way.
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So let’s say I created a rather extensive illustration/photoshop file for a sign. The client’s colleague is asking to use the same illustration for another sign for them on another property. Client is under assumption that the artwork is for them (they paid for it) and says they are under a lot of requirements if they are going to share. However, since they do not own the illustration, just the final product (with text and logo incorportated) is it ok to use the illustration again for other projects or under common courtesy, best to ask first? How would you approach this situation? Thanks!
Hi there, I think the value of this article is proven by how many years people have been leaving comments on it! Your input was very reaffirming. I am wondering if you could shed light onto my situation. I’m in the middle of laying out a restaurant’s collection of menus (food, beverage, bar, etc.) and while these are brand pieces, they obviously need to be updated frequently. What would you recommend I do in this scenario? I don’t want to under-value my work as “just layout” and hand them over when in reality there is a ton of copy to meticulously handle.
That depends what you would like to do/what you’re comfortable with. I would offer them two options; either I would retain the native files and they can pay me hourly once the project is done if or when they need updates and give them the updated PDF (or whatever output you provide), OR, I would offer them a chance to purchase the native files for a percentage of the project total. I typically charge between 25-50% depending on what it is and how much I feel it’s value is to the client, as well as how much future work I might loose if I do so. Hope that helps.
Hi,
I am in a tough situation. I used to be in a loose partnership with a copywriter over three years ago. I did the design, he wrote the copy on the various projects. The same was with our “company” website. After we split up he “hijacked” our website an turned it into his own personal website, while still using/displaying my designs. He paid me for the work, I have done, as a freelancer, but I never signed over my rights to him for the designs. I asked him to take down the whole site, which would be fair to both of us and he refuses to. He claims that he did the copy and he paid me for the work. He also does not give me any credit for the designs, that are displayed. What legal rights do I have?
That’s definitely a tough situation, sorry you’re in a pickle. Honestly your already complicated situation is made even more complicated by the fact that it’s a website; due to the nature of a website, it’s harder to prove or retain copyright. But if you designed it/created it, it does belong to you. The copy/content that he wrote belongs to him. I would suggest bringing a lawyer in to provide counsel, as I am not one. Sorry I can’t be of much help. Good luck.
I came across your article after receiving a Confirmatory Assignment out of the blue from a client today. I have been working with them for a long time and wonder why they are sending this to me all of a sudden? I mostly do illustration, as well as some graphic design work for them for print and packaging. Things usually go smoothly and we get along well..or so I thought. I am very uncomfortable with some of the terms listed in this agreement. Basically it says that I would be transferring all of my rights to the work that I have done for them. They can use, distribute, license and make changes to the work as they please. As well, it says that they have the right to make me remove any examples of the work I have done for them from my portfolio. I think that the copyright laws are a bit different here in Canada. But this seems a bit crazy. They are my biggest client, and I don’t really want to lose them. However, I really don’t want to sign this thing.
I’m afraid I can’t answer that for you, as I have no idea what the laws are in Canada surrounding copyright. You may want to consider talking to your client about the language in the contract, and see if you can reach a middle ground, or figure out which clauses are deal breakers for you. Also, consider charging more if they want full rights or access to your files. For me the biggest deal breaker would be not being able to use the work in my portfolio. Best of luck.
Not being able to use the work in my portfolio was what troubled me the most. They have always been an easygoing client. I will get in touch with them to discuss the language, and see if they are willing to delete the part about my not being able to display the work in my portfolio. Thank you so much Sheila!
Thanks so much for this! Without any reference on this it’s easy for young freelancers to get burned. I really like your suggestion in the comments about charging a percentage of the design fee for native files. 50% sounds very fair, but I like that you can scale it down a little for clients on a tight budget.
Thank you for the article. I’ve been trying to find how to word this to my clients on a contract. Your article was spot on!