Reader: I work for a small nonprofit and handle all of our in-house graphic design. Graphic design was not a duty laid forth in my hiring; it was a skill set I brought to the table when it was clear that vendors were not delivering the quality the organization was looking for.
Although I am compensated for this work through my salary, all of the work is done on my personal equipment and with my own software subscription.
Over the years, I have created elaborate digital illustrations that highlight our organization’s work. These illustrations have been featured on our annual reports. My boss has hinted about using the designs for posters that the organization could then sell as a fundraising project.
Am I able to retain any rights to the illustrations? I am starting to look for a new job, and it would be nice to know how much (if any) intellectual property I may be able to retain due to using my own rather expensive equipment.
Karla: It depends on what your designs are. (Har.)
If you’re thinking about reselling the illustrations you produced for your employer, or using them in some other way for your own commercial gain, you’re probably out of luck, according to employment attorney Amy Epstein Gluck and intellectual property attorney T.J. DoVale, both with FisherBroyles. The designs you produced within the scope of your employment likely qualify under the Copyright Act as “works made for hire,” which means they belong to your employer.
Epstein Gluck notes whether a work is “made for hire” depends on several factors, including whether the work occurs within authorized work hours and whether it’s performed in part to serve the employer. It doesn’t matter that you weren’t originally hired as a graphic designer or that you do the work on your own equipment; you’re doing the work on company time for the company’s dime. (Speaking of dimes, why not drop one to an accountant to see whether that expensive personal equipment qualifies for some tax deductions as unreimbursed business expenses?)
If you were a freelancer, your contract would — or should — spell out what rights your clients would retain for any work you produce for them. As a full-time employee, unless your policy handbook offers more details, you will probably have to ask your employer specifically if you want to reuse designs, sketches or rejected ideas for your own profitable purposes (though that could raise questions from your employer you might not want to answer).
Perhaps you simply want to use copies of the designs in a portfolio. DoVale says that would probably be an acceptable use, as long as you don’t try to resell the designs, post them online or distribute them. Showing designs to prospective employers as samples of your past work, or posting URLs to pages on your nonprofit’s website that feature your work shouldn’t get you into trouble.
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PRO TIP: Freelance designers and other creative types can find contract and licensing templates, as well as other helpful resources, at freelancersunion.org.