Designer loses a 3-month contract after sharing the project 'without client's knowledge'; where does the law stand on copyright?
Client terminates a designer's 3-month contract for sharing the work without their knowledge. What does the law says on copyright and ownership of a design/creative work?
On November 29, Favour's Design, a visual content creator on X, shared how a client terminated a 3-month contract he had with them after he shared a design he made for them ‘without their knowledge’.
“I lost a Prominent Client Today,” he wrote. “Posting the company's flyer without their consent. They said it's wrong for me to post the flyer without their knowledge. After an hour they terminated the 3 months contract with letter sent to my email box I just dey cry since Morning.”
He added, “I no sure say I go dey post again. This is very painful.”
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In response to a question from an X user whether the client had shared the particular design publicly or not, he said, ‘Yes, the client had shared it.’ So this is not a case of a designer sharing the project before the client, as that would have been unacceptable.
While a lot of the comments under the post tried to console him and told him he should have asked for the client’s permission before sharing, I found a few other interesting comments. One of them was a comment by X User Future Montage [@FutureMontage] who said he thought the post by the designer was a way of brand publicity. “Why are they angry that you posted?” he asked.
Funsho [@funshorfelix], a brand strategist and the founder of Bransolute, also echoed the brand publicity sentiment. “Trust me, the company wouldn't fire you if you got thousands of followers and probably brought them some leads,” he wrote. “While I'm livid about this, I think this could have been easily resolved with a verbal confirmation esp if there is information concealed on the flyer for private purposes.”
He added, “On the other hand, it might be that you dodged a bullet because why would I not want a marketing material to be promoted, this time by the actual designer? Anyway, dust your shoes, your big gigs are still ahead.”
Another interesting comment is a comment by Leslie (Design ShugarDaddy) [@shugarDadddy] in response to him saying the experience has taught him not to post a client’s work without permission. “I think other things you can take away from this experience could be that 1. Always look at contracts carefully. 2. If you're going to be posting client work where permission isn't exactly clear or implied, ensure you remove everything that identifies the client,” Leslie shared.
The battle for ownership
A comment by Richard U. [@iamrichygold], a UI/UX designer, sparked an interesting conversation on who owns the copyright to a design. In his comment, he argued that “When you make a design and the client pays, it's no more yours. It becomes their property.” And according to him, you'd have to ask for permission to post it or add it to your portfolio. “They're right. Send an email and appeal it professionally. Don't beg them, apologize and be professional,” he added while offering to share a template for an email he can send to apologise to the client.
But according to Femigrey [@realfemigrey], a brand narrative designer, Richard’s assertion is wrong. “Please learn your rights - it doesn't become their property unless you've signed an agreement to transfer IP rights to them,” he wrote. “And unless you signed an NDA you can share your work. Design needs to be taken as a serious business.”
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However, Richard insists that the designer only has control of the source file “unless clients pay for this separately,” claiming that the finished design is the client’s property as long as the job is fully paid for. “Don’t lose a big client because you didn’t understand this simple rule. If you want to post it, modify the source file and remove their name,” he cautions.
In a rebuttal, Femigrey wrote, “Like I said - learn your rights and the business of design. We have a long way to go in this design space A full payment only transfers the right to exclusive usage - it doesn't transfer ownership. If there's a signed agreement transferring IP rights to the client - then it becomes their property and you should charge very well for that.”
He added, “The best you can do is ask for a time they're comfortable with you posting your work - out of courtesy. Probably in a case where they haven't launched yet, starting out or not - learn your rights and don't let anybody cheat you.”
Designer vs Client: What does the law say on ownership and copyright?
Now, the main question is: Between the designer and the client, who ‘owns’ the copyright to a piece of design? Take note of the keyword “OWN”.
What does the law say? According to Part III, Section 28 (1) of the Nigeria Copyright Act, 2022, on ownership, transfer and licences, “Except as otherwise provided in an agreement, copyright conferred by this Act, shall initially vest in the author.”
And in this case, the designer, who is the author, automatically owns the rights to their design unless there's a specific agreement in place that transfers ownership to the client. Therefore, a designer has the right to choose their own terms in regard to the transfer of ownership.
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However, there is an exception to this law. The exception is under a work-for-hire condition—where the designer is a full-time employee of an organisation. So any work the designer creates in this arrangement belongs to the organisation, that is, the client in this case.
But a designer hired as an independent designer or freelancer, unless specifically stated in their contract, is not a work-for-hire.
When does the client get ownership?
The client only gets ownership when there’s a written and signed agreement that explicitly transfers the copyright from the designer to them. This agreement should clearly outline the terms of ownership and any limitations on the client's use of the design.
But in a situation where there’s no agreement or contract between both parties, the copyright automatically belongs to the designer.
To avoid misunderstandings and potential legal disputes, it's important for designers and clients to have a clear written agreement that outlines:
Ownership of Copyright: Who owns the copyright to the design (designer or client)?
Confidentiality: Are there any confidentiality obligations for either party?
Rights Granted: What rights are being granted to the client (e.g., exclusive use, modification rights)?
It's recommended to consult with a qualified attorney for guidance on contract drafting and dispute resolution (if one arises).
