Found an issue on this page? Let us know and we will look into it as soon as possible.
Can I claim copy right of the interior design projects I did before while working for a design firm that went bankrupt?
Anonymous3 views5 answers
I did a number projects for this design firm that has filed bankruptcy two years ago. I was the sole designer on these projects and was recognized by the clients. With permission from the clients, I photographed the projects myself. Now with my own company, am I allowed to post these photos on my website?
I would agree with Attorney Goldstein's analysis if I agreed with his underlying assumption. He assumes the initial Company had a "copyright" in the interior design of the space that was photographed. I think that assumption is probably mistaken for at least three reasons:
(1) "Interior design" is not one of the 8 specific categories enumerated in 17 U.S.C. 102 as comprising the "subject matter of copyright." It does not come within the purview of "architectural works," in my opinion, because an "architectural work" is defined as meaning "the design of a building ..." or entire structure. That does not include the purely interior design of an individual unit within an already existing structure. (By including "architectural works" in sec. 102, Congress sought to extend copyright protection beyond the pictorial representations of buildings to buildings themselves. Accordingly, after passage of the 1990 Architectural Works Copyright Protection Act, the copyright in a building and in its plans were distinct and could be infringed separately.)
(2) In its final iteration- i.e., as assembled in real life- the interior design of a unit is not "fixed in a tangible medium of expression." It therefore does not satisfy the most basic requirement for copyright protection.
It follows that, while an interior designer certainly uses, collects, assembles and arranges elements that are themselves protected by copyright (e.g., artwork, fabric, carvings, etc.), the resulting assemblage is not itself copyrightable since, absent fixation, it cannot qualify as an original work of authorship eligible for protection under the Act. It also, therefore, cannot qualify as either a "compilation" or "derivative work."
(3) A photograph can be protected by copyright, however, even if the object of the photograph isn't. See Copyright Office Circular 40. So, the important question from my perspective here is: Who is "the author" of the photographs in question? If the designer took them after leaving his former design firm, they cannot be their work-for-hire. He is their "author" for purposes of the Act, holds the copyright in them and can post them. (That does not mean that he could replicate the designs depicted in the photographs in three dimensions inside a building. If he did that, he would probably violate his prior firm's state-law rights and, perhaps, be guilty of unjust enrichment. As I understand the situation, however, the designer has no intention of doing that. He simply wants to include the photographs in his online portfolio. As long as he accurately states that he created the designs while employed at his former firm, he is not- in my view- unfairly competing with it.)
If he took the photographs while still employed by his former firm, on the other hand, they would be work-for-hire and that Company would own the copyright in them.
* * *
I do not mean to suggest that because design work that does not encompass the interior architecture of an entire building may not be within the "subject matter of copyright," that "interior design" is not a creative enterprise and not legally protected. Far from it.
The Copyright Act protects appropriate plans and drawings as "pictorial works" and realized designs, in my view, are eligible for state-law protection. (If they are not within the subject matter of copyright, then legitimate state-law claims concerning them should not be preempted.)
Designers and design firms can and should work with knowledgeable intellectual property law counsel to develop ways to protect their creations. Appropriate legal judgments can only be made based upon a full development of the facts. The fact that three experienced counsel have come to such differing preliminary views, based on the limited facts we were given, is testament to that fact.
Disclaimer: This answer does not establish an attorney-client relationship. It is for general informational purposes
This is NOT legal advice. What I am providing to you is general information for educational and informational purposes only.
Two parts to this answer, the general rule is that the person who creates the copyrighted work is the owner of the copyright. The exception is where there is a contract, which states otherwise, or where the work in question is a work made for hire. Work made for hire situations arise in 2 instances, generally where an independent contractor creates something (e.g., photos, books, articles, videos), or when an employee--within the scope of their employment--creates a work of art or authorship.
Without having more information, it appears that what you created when employed, belonged to your employer. Therefore for you to use it without permission could be viewed as copyright infringement.
The other thing is just because your former employer is in bankruptcy doesn't mean you have the right to take his assets. Copyright protection lasts for the lifetime of the copyright holder PLUS 70-years; if it's a work for hire relationhip it lats for 95-years from when the work of art is published or 120-years from date of creation, whichever comes first.
I regularly write blog pot on a variety of copyright issues. Check them out.
Hope this helps.
I'd like to add one more thing. In looking at the responses you received, I realize this is why, when it comes to legal information, you should hire an attorney who understand the specifics of your situation. Then and only then can they offer you a solution that supports YOUR needs. You received information from 3 lawyers, and a non-lawyer sharing legal information, and 2 of them directly contradicted the other two. You may want to consider hiring an attorney to give you ADVICE about your matter, based on the law, not assumptions.
I have to agree with attorney Ward on the analysis of the copyright. If you did the work as an employee, the employer would own the copyrights under the work for hire doctrine. The copyrights still belong to the company. If the company is in Chapter 11 bankruptcy, it may emerge or it may liquidate. If the company emerges, it will continue to own the copyrights. If it liquidates, someone else will own it. You can face copyright infringement claims from the owner. Posting the images to the copyrighted material that someone else owns can subject you to infringement even though you created the work.
Do not assume, that stating that you did the work for another company will overcome such a claim.
[This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]
It sounds to as though you are suggesting that you were given permission by the former clients to take pictures of the designs after your tenure with the previous firm ended. If that is so, then you own the copyright in the photographs and can post them on your web site, on my opinion. In addition, there is nothing wrong with your stating, as a matter of fact, that you created the designs when you worked for "XYZ" Firm as a designer. That is a truthful, factual statement.
Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.