Copyright On Creative Work

I have been looking into certain issues of copyright from a legal and halachik perspective, and here are my current findings:

The impetus for this all was a case where a group of fine avreichim approached me for layout of their Rosh Yeshiva’s shiurim and shmuessim, with the view of eventually compiling a book. They had a specific format in mind, saying that the talmidim recalled shiurim and referenced them by when they were given – ‘the Shiur the Rosh Yeshiva gave last Shavuos’, for example, or by subject – ‘when he spoke about achrayus for the klal’.

They wanted layout of the shiurim given up until now, but wished to continue adding in material as more shiurim and shuessim were delivered. And, of course, they had almost no money.

What to do? I put on my (slightly dusty) thinking cap and suggested that if they had someone with moderate graphical skills then I can create an Indesign template that they can drop in the material as it is given, then merely apply the styles. This would cost something, but it would be a fraction of what it would cost otherwise. They accepted.

I contacted a freelance layout artist that I know and asked him to create for me an indesign template that would look great even using default, everyday fonts, something that would be idiot-proof. He did so, and I paid him, and was paid by the avraichim.

Next, I had a thought that if we would put the template out there for common use, and put our name and the artist’s name there, this could be a great way of showing folks how truly proficient and professional we are, and helping them out all at the same time. I cannot see how that would hurt sales for anyone involved. However, when I contacted the typesetter, he thanked me for asking, but said that, No, the template was forbidden for any use other than the one it was expressly designed for. Using it for other use requires another payment.

I understood this to mean that even if those avreichim themselves would want to use the template for another use – lets say the person had a personal sefer he wanted to produce, and not the shiurim of the Rosh Yeshiva, – they would need to purchase that from the designer.

I was floored by that, and asked the typesetter for references. He sent me none, so I went digging on my own, and here is what I found:

  1. Legally (Israel law) it seems that this is absolutely so – anything created belongs to the artist, and the customer can only use it for the express use it was delivered. If a logo was created for a website, it may not be used on a mug. If created for one website, it may not be used on another. See minute 19 here
  2. Some suggest that this be written in the contract, and is then valid, see here.
  3. However in a conversation with one of the major poskim today he said that he thinks that people do not have this in mind when they contract with a graphic artist, and their usual understanding is that the customer may indeed use it for purposes other than that it was specifically created for, – his example was that a book cover may be used and modified for other editions and volumes – but that the customer would not be allowed to resell the cover, for that was the implicit agreement: its yours for whatever you need it for, but not for commercial selling.
  4. I asked around, and found that indeed, in general customers do use work produced for them for other purposes than those they were created for, for instance if a poster was considered for one campaign, the customer will reuse it for a second one. And the graphic artists seem ok with that. My layout person assured me that this was not standard practice, but from the informal polling I have done it seems that he is wrong.

I think there is a certain amount of cross-assumptions here, where the artists think its all theirs and the customer thinks its all his. The truth, as usual, is somewhere in between. The law, I suspect, was created by artists and people interested in protecting their assets, and the rights of the customer might nowt have been fully accounted for. I suspect this because who asks for these laws? Artists, special interest groups. (Its like Farmer Protection Laws, onerously skewed towards the farmers at the expense of the public…) The Halacha seems to follow the standard practice.

Do we follow halacha or dina d’malchusa? I’m no posek, but there are shitos in Shulchan Aruch that dina d’malchusa applies only to real estate issues, and I don’t know that the letter of the law would be anyhow enforced in these cases even in court.

Two other factors added to the mix might be that A. the artist is not producing a work of major creativity, such as here, when its just a template, not something new and unique, but rather something done all the time by typesetters, there would be less protections for the creator. B. If the artist works by the clock and gets paid at the end of the month whether he delivers or does not, then this is like a worker in hte office producing work for the company. Indeed, even in that scenario there are legal opinions that the work belongs to the artist, but they are much harder to justify.

A side point is that Fivver and other freelance sites have begun stipulating that he work becomes sole property of the customer, and down the line this is bound to influence the way the public views work done on behalf of clients. So eventually this entire conversation may become moot.

And on a personal level, I have a distaste for a scheme where an artist – singer or actor or designer or whatever – works to produce one product, then sells the rights and profits from it while reclining on the beach. To me there is something profoundly morally wrong with the picture…