This is the second part of Ask the Expert on copyright and IP for designers. This article covers key copyright and intellectual property issues that Canadian designers commonly deal with. It answers five common questions: what contract terms to look for, how to use client projects in your portfolio, the differences between conventional copyright, Creative Commons, and public domain, how to safely share or license your work online, and how to set licensing fees and royalties.

Many designers assume that once they have created a work, they automatically have the right to use and share it as they wish. In reality, if the work incorporates a client's logo or other identifying elements, or if the terms of their contractual agreements require it, such use may violate contractual obligations if done without explicit permission. It is therefore essential to clarify and secure all necessary rights before using or sharing client-related work.

Q1: When reviewing contracts, what key terms should designers look for?

A: The following list highlights key terms to review in every designer contract:

• Copyright ownership: Who owns the work once finished? Is the copyright transferred (permanently assigned) or licensed (permission granted)?

• Assignment vs. licence: According to section 13(4) of the Copyright Act, an assignment must be in writing and signed by the copyright owner. Licences can be exclusive, sole, or non-exclusive. Robertson v. Thomson Corp. (2006 SCC 43) clarified that freelance authors and creators retain copyright in their works unless rights are expressly assigned in writing.

• Scope of licence: If licensing, specify: What uses are permitted? (Print, digital, broadcast, merchandise.) Which territories? (Local, national, worldwide.) Duration? (One campaign, five years, perpetual.) Is it exclusive or non-exclusive? Can a sublicence be granted?

• Moral rights: Is there a waiver clause? As per section 14.1, moral rights can't be assigned—only waived. Clarify what rights you're relinquishing: attribution and integrity rights. Snow v. Eaton Centre prevented a mall from modifying a sculpture because the artist hadn't waived these rights.

• Payment conditions: When do rights transfer? Upon full payment? A 50% deposit? Milestone approval? Include provisions for late fees, kill fees, and make additional revisions billable.

• Portfolio permissions: Can you showcase your portfolio work? This should include finals, sketches, and process work—elements critical to attracting clients.

• Modification rights: Can the client edit the work without your consent? This relates directly to your moral rights waiver.

• Credit and attribution: Will you be credited? Specify the location and manner.

• Independent contractor vs. employee: Verify your classification. Independent contractors retain copyright unless assigned (s. 13(1)); employees' work belongs to the employer when produced "in the course of employment" (s. 13(3)).

• Reversionary interests: Under section 14(1), copyright assigned by the first author reverts to the author's estate 25 years after death. Clients might not realise that "perpetual" assignments aren't truly permanent.

• Termination and liability: Examine cancellation terms, kill fees, indemnity limits, and applicable laws.

Designers should ensure that all licensing terms are clearly and specifically defined in their contracts. Precise contractual language—such as specifying, "Client is granted a non-exclusive licence to use the work for twelve months in North America for online advertising only"—safeguards the interests of both parties.

Q2: When and how can designers show client projects in their portfolios?

A: Many designers believe that completing a project automatically gives them the right to display it. However, this is not always the case. Client logos, branding, or contractual restrictions can lead to breach claims if you showcase the work without specific permission.

These useful tips can help ensure your contract sufficiently addresses portfolio rights: (1) request explicit written permission to display both final deliverables and process materials; (2) specify perpetual and worldwide usage rights that encompass all media types; (3) require that confidential information be excluded from portfolio display; (4) ascertain whether there will be blackout periods before public release; and (5) determine if portfolio exceptions can be included in the presence of non-disclosure agreements (NDAs).

Sample portfolio clause language: 

"The Client grants the Designer an irrevocable, non-exclusive, perpetual, worldwide licence to display, reproduce, promote, and distribute the Work—including sketches, drafts, concepts, process materials, mock-ups, and final deliverables—in any media now known or hereafter devised (e.g., the Designer's website, Behance, social media, awards, client pitches). The Designer shall provide Client attribution where practicable, omit confidential information, and observe any embargo. This licence persists after termination."

NDAs often completely restrict the use of portfolio work. Before sharing work protected by an NDA: verify if the NDA has expired; seek explicit written approval; or develop anonymised case studies that showcase your process without revealing the client's identity. Always obtain written permissions.

Q3: How do Creative Commons licences and public domain status compare to traditional copyright?

A: Knowing these distinctions keeps you infringement-free while unlocking free or affordable resources.

Conventional (traditional) Copyright: Full protection lasts for the author's lifetime plus 70 years, an extension from 50 years under CUSMA in 2022. All rights are reserved unless you choose to license or assign them. This is the default setting for client designs.

Creative Commons Licences: Creators retain copyright but grant pre-defined permissions. Six main CC licences exist:

• CC BY (Attribution): Credit the creator—no other limits.

• CC BY-SA (ShareAlike): Credit required; derivatives must use the same licence.

• CC BY-ND (NoDerivs): Credit required; no modifications permitted.

• CC BY-NC (NonCommercial): Credit required; non-commercial use only.

• CC BY-NC-SA: Combines non-commercial, attribution, and ShareAlike.

• CC BY-NC-ND: Most restrictive—credit required, non-commercial only, no modifications.

• CC0: Public domain dedication.

Consistently confirm the licence at creativecommons.org to ensure that you fully understand and comply with the particular terms, permissions, and limitations associated with each Creative Commons licence.

Public Domain means you are free to use the work without restrictions. In Canada, works by authors who died before 1972 are in the public domain. For authors who died in 1972 or later, the copyright lasts for the author's lifetime plus 70 years. CC0 permits voluntary dedication of work to the public domain.

Q4: What should designers keep in mind when sharing or licensing work online?

A: Sharing designs online drives exposure but invites copying. These steps protect your work effectively.

In Photoshop or Illustrator, embed Copyright Management Information (CMI): Go to File > File Info. Enter the author's name, set the Copyright Status to "Copyrighted," add a notice ("© 2026 [Your Name]. All rights reserved."), a URL, and contact details. Save as a metadata preset. CMI creates a digital fingerprint for disputes.

When posting, include a visible copyright notice and terms in captions. Credit collaborators and disable sharing where possible (non-shareable posts, password-protected PDFs). Add "Reproduction not permitted" to your work. Actively monitor your work online using Google Alerts and reverse image searches.

Obtaining a formal copyright registration is recommended, as it provides government-issued, legally recognized proof of the date and authorship of your work. However, copyright protection in Canada is automatic upon creation. If you choose not to register, you can still establish evidence using self-timestamping methods such as emails with dated attachments, cloud backups with timestamps, or third-party digital timestamping services like artcryption.com.  While a government registration gives you prima facie evidence of ownership of copyright, a timestamped, encrypted certificate would still give you evidence in court, but you may have to provide stronger evidence of authorship and use. 

Always review the platform's terms of service. Instagram and TikTok include provisions that grant them broad promotional licences. Upload only low-resolution or watermarked versions; keep high-quality files private.

In Canada, the "notice-and-notice" regime doesn't require ISPs to remove content (unlike U.S. DMCA takedowns). You must pursue legal remedies if infringers don't voluntarily comply.

Q5: For designers who license or sell their work, what are the key considerations for setting fees or royalties?

A: Licensing turns creativity into recurring revenue, but underpricing kills future earnings.

Core pricing factors:

• Scope: What uses? Print ads, digital banners, merchandise? Advertising and merchandise command higher fees than editorial.

• Territory: Local < national < worldwide (double rates for global).

• Duration: One-off event vs. perpetual (charge 3–5x for perpetual).

• Exclusivity: Non-exclusive is cheapest; exclusive commands premium fees.

• Payment structure: Flat fee (simple), royalties (5–10% of sales), or hybrid.

• Volume: Tier by impressions or print runs.

Licensing types:

• One-time rights: Client gets single use; you retain copyright and renegotiate extras.

• Limited rights: Time or territory-bound (e.g., two years, Canada, digital only).

• Unlimited rights: Client gets endless uses—standard for logos.

• Assignment/work-for-hire: Full ownership transfer—charge 2–3x premium.

The CARFAC-RAAV Schedule (2025) is the industry standard for Canadian visual artists. Key guidance: reproduction fees scale by circulation and territory (worldwide = 2x base rate; North America = 1.5x). Download at carfac-raav.ca.

Andy Warhol Foundation v. Goldsmith (US Supreme Court 2023) confirmed that commercial licensing competing with the original isn't fair use. Protect your market by tightly scoping licences.

Start with the CARFAC base rates and multiply by 2 for design work. Unlimited or exclusive? Add 50–100%. Contracts should specify: "Licence non-exclusive, worldwide print/digital, 5 years, flat $X."

Undervaluing your work can diminish both your perceived and actual professional worth. In fee negotiations, emphasize the added value exclusivity brings to the client and use this as a foundation to justify higher fee models.

For a checklist of the above tips, email vandana@entcounsel.com.  Contact Vandana Taxali at vandana@entcounsel.com for more information. 

© Vandana Taxali, 2026. All Rights Reserved. 

References:

Entcounsel Law Firm

https://entcounsel.com/blog/copyright-notice

Canadian Intellectual Property Office (CIPO) – Copyright Guide https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/copyright

RGD Copyright Agreement Template https://rgd.ca/working-in-design/resources/copyright-agreement

CARFAC-RAAV Fee Schedule (2025) https://carfac-raav.ca

Creative Commons Licence Chooser https://creativecommons.org/choose

Copyright Act, R.S.C. 1985, c. C-42 https://laws-lois.justice.gc.ca/eng/acts/c-42/

https://www.artcryption.com/blog/navigating-the-ai-landscape-safeguarding-artist-copyright-in-the-digital-era

For informational purposes only; not legal advice.