Ask the Expert: Copyright and IP for designers in Canada (Part 2)

Part two of this series covers key copyright and intellectual property issues that Canadian designers commonly encounter. It answers five common questions:

• What contract terms designers should look for
• How to use client projects in a portfolio
• The differences between conventional copyright, Creative Commons and the public domain
• How to safely share or license work online
• 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 however they wish. In reality, if the work incorporates a client’s logo or other identifying elements or if contractual terms restrict its use, sharing the work without explicit permission may violate those agreements. It is therefore essential to clarify and secure the necessary rights before using or sharing client-related work.

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

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? Could be print, digital, broadcast, merchandise. Which territories? (Is it local, national, worldwide? Duration? One campaign, five years, perpetual are possibilities. 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 realize 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 12 months in North America for online advertising only"—safeguards the interests of both parties.

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

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 may lead to breach claims if you showcase the work without specific permission.

These 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 displays; (4) confirm whether there will be blackout periods before public release; and (5) determine whether portfolio exceptions can be included when non-disclosure agreements (NDAs) are in place.

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 submissions and client pitches). The Designer shall provide Client attribution where practicable, omit confidential information and observe any embargo. This licence persists after termination.”

NDAs often restrict the use of portfolio work entirely. Before sharing work protected by an NDA, verify whether 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 permission.

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

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.

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

Sharing designs online can drive exposure but may also invite copying. The following steps can help protect your work.

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” and add a notice such as “© 2026 [Your Name]. All rights reserved.” Include a website URL and contact details, then save the information as a metadata preset. CMI creates a digital fingerprint that can help support copyright disputes. This information may also be referred to as XMP metadata.

When posting work online, include a visible copyright notice and clear usage terms in captions. Credit collaborators and disable sharing where possible, such as using non-shareable posts or password-protected PDFs. You may also include a statement such as “Reproduction not permitted.” Actively monitor your work online using tools like Google Alerts and reverse image searches.

Obtaining a formal copyright registration is recommended because 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 such as artcryption.com. While government registration provides prima facie evidence of copyright ownership, a timestamped encrypted certificate can still serve as supporting evidence in court, although stronger proof of authorship and use may be required.

Always review the platform’s terms of service. Platforms such as Instagram and TikTok include provisions granting them broad promotional licences. Upload only low-resolution or watermarked versions of your work and keep high-quality files private.

In Canada, the “notice-and-notice” regime does not require internet service providers to remove content (unlike U.S. DMCA takedowns). As a result, you may need to pursue legal remedies if infringers do not voluntarily comply.

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

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.

 A more detailed version of this article can be found here.

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.