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It is critical to include your and the designers Intellectual Property Right (IP) in your negotiations.

  1. Who came up with the design?
  2. Was the design amended?
  3. Did the designer pay for the prototype?
  4. Did you charge for a prototype?
  5. Can the IP be shared?
  6. What happens if it is also on Pinterest?

Answers:

  1. The IP is owned by the author, the person who came up with the design. However the onus is on the designer to prove this. 
  2. If you contributed to the design make sure this is acknowledge as you then have at least a right to the IP. It is critical to agree this up front, as it is difficult to prove later and you may loose your right to a potentially lucrative product.
  3. If the designer gave you the design, you did no further development and the prototype was paid for, then the IP is clearly owned by the designer.
  4. Our advice is to always get the designer to pay towards the prototype. If they know that it isn’t a free service, they will ensure that it is approved sooner.  Not doing this could give the designer carte blanche to ask for unlimited changes. It could cost you a fortune, especially if you don’t have a guarantee of even doing the production. The rule of thumb is to charge at least 5 to 10 times of the eventual cost for prototyping. Get them to pay for this and you may deduct it off the final production invoice.
  5. Yes the IP can be shared, but negotiate the rights of the two parties. A good example is if the first production is for a specific project and the rights to maker to produce it for the open market after a defined period.
  6. If you are told that the design is the original work of the designer and you discover it on Pinterest, you have the obligation / right to inform the designer of this. The problem is that if you knowingly take the project further, you and the designer could be held liable for breach of IP rights is the Pinterest designer or maker can prove their ownership of the design.

PS. Proving copyright is not easy. It is advisable to be able to prove your ownership of a concept at the time of when it was done. After the fact makes it difficult to prove.