Visual identity agreement under Polish law – key provisions

A visual identity agreement is a document that defines the scope of cooperation and mutual obligations between the graphic designer and the client. The agreement covers not only artistic and creative aspects, but also legal, technical, and organizational issues related to the implementation of the project. In order to ensure legal security for both parties, it is necessary to regulate this relationship in such a way as to define the rights and obligations of each party as precisely as possible. 

This article provides an in-depth analysis of the key elements of a visual identity agreement under Polish law, including references to relevant legal provisions and practical tips based on our experience.

In this article, we discuss the key legal aspects of a visual identity agreement in Poland, including, among others:

• whether a visual identity agreement is a contract for specific work or a contract for the provision of services,
• the subject of the agreement – what the scope of the graphic designer’s work should include and how to clearly define the purpose of the cooperation,
• how to regulate the course of cooperation with the graphic designer, including communication and deadlines,
• key provisions regarding withdrawal from the contract and modification of its content,
• transfer of copyrights and determination of fields of exploitation,
• graphic designer’s liability and methods of copyright protection,
• determining the rules of remuneration – lump sum, hourly rate, division in the case of a mixed contract,
• confidentiality clause and protection of the client’s trade secrets,
• compliance of the contract with the GDPR – how to protect personal data,
• final provisions, i.e. jurisdiction, court, subcontractors, and operational contact.

Visual identity agreement – a work or a service under Polish law? 

Is a visual identity contract a work contract? A visual identity contract is not a named contract within the meaning of the Polish Civil Code. This means that this contract is not explicitly regulated in the provisions of the Polish Civil Code as a separate type of contract (such as a sales, lease or commission contract).

Due to the broad and multi-stage nature of visual identity work – from logo design, through the selection of colors and typography, to the preparation of a complete brand book – it is not always possible (or reasonable) to unequivocally classify the agreement as a “work agreement” or a “service agreement.” However, this is not an error, but results from the fact that a visual identity contract most often contains elements characteristic of both types of obligations.

On the one hand, we are dealing with a specific result – a finished graphic design ready for implementation, which can be classified as a work (Articles 627–646 of the Polish Civil Code). On the other hand, increasingly often, as part of a visual identity agreement, the cooperation between the graphic designer and the client also includes branding consulting, consultations, target group analysis, or even workshops with the client. These activities are ongoing, based on careful action rather than the achievement of a specific result, which brings them closer to a service contract (Articles 750–764 of the Polish Civil Code).

The Polish legal system is based on the principle of freedom of contract (Article 353¹ of the Polish Civil Code), which means that the parties may shape the content of the legal relationship at their own discretion, provided that it does not conflict with the law, the principles of social coexistence, or the nature of the obligation. Furthermore, the name of the contract is not decisive – the legal classification of the contract is determined by its content, not by its title.

Therefore, in Poland even if the document is called a “visual identity agreement,” “visual identity contract,” “visual identity creation agreement,” or anything else, the court (or tax authority) may decide that it’s actually a contract for specific work if the element of achieving a specific, individual result is the main thing. On the other hand, if the contract is dominated by consulting activities that are difficult to measure or determine their final effect, the contract will be treated as a service contract. In practice, however, the distinction between a contract for specific work and a contract for the provision of services is often of little significance for the course of cooperation with the graphic designer – provided, of course, that the parties properly regulate all relevant legal issues in the contract.

Subject matter of a visual identity contract – detailed specification of the scope of the graphic designer’s work and the purpose of the contract

What should a contract with a graphic designer include under Polish law? Our experience shows that the foundation of any well-structured visual identity contract is a precise definition of the subject matter of the contract. The parties must clearly define which elements will be covered by the order. Using the general term “visual identity” may be insufficient and lead to misunderstandings between the parties.

How to define the scope of a graphic designer’s work in a contract? A well-drafted visual identity contract should therefore list and describe in detail each element of the graphic designer’s work, including, for example:

• logo (with variants, formats, and colors), i.e., all graphic versions of the logo, both in color and monochrome, and in various file formats that will be used in advertising and promotional materials,
• key visual, the main graphic motif that represents the brand or campaign, often used in advertising materials, advertisements, on the website and other media, which visually communicates the values and identity of the brand in a consistent manner,
• color scheme, i.e., a set of colors that will dominate the brand’s visual identity, including both primary and secondary colors, selected in a way that ensures visual consistency and compliance with the brand’s values,
• font selection, i.e. the selection of font types that will be used in branding materials, such as logos, headings, texts, and other elements of visual communication, ensuring legibility, consistency, and compliance with the brand’s character,
• design of materials (e.g., letterhead, business cards, offer templates), i.e., the design and graphic development of all marketing and office materials that will be used in the company’s daily communication, ensuring visual consistency and a professional brand image.

The more detailed the description of the subject of the contract, the lower the risk of disputes during the execution of the order.

It also seems important for the customer to make a statement that they have previously reviewed the graphic designer’s portfolio and accept their style and sense of aesthetics. This provision will limit the risk of possible subsequent claims from a customer who is dissatisfied with the final result. If the client accepts the graphic designer’s style and aesthetics at the stage of concluding the visual identity contract, it will be extremely difficult to subsequently accuse the graphic designer of not meeting their expectations.

Visual identity contract – regulating the course of cooperation with the graphic designer

A contract for the creation of a visual identity should divide the design process into stages, which significantly facilitates project management, especially for more complex websites, such as online stores. 

Typical stages may include: 

• the stage involving the establishment of assumptions, during which it is essential to conduct a detailed briefing with the client. Accurate documentation of the arrangements made at this stage (e.g., in the form of a written summary) is crucial to avoid subsequent misunderstandings and possible claims. 
• the stage of selecting and approving content, i.e., materials (texts, graphics, photographs) to be used in the designs. It is essential for the smooth running of the project to clearly define who is responsible for providing the content and in what format.   
• the stage involving the design and approval of projects, which includes the graphic designer presenting design proposals, their selection by the client, and the introduction of any corrections. It may be important for the graphic designer to limit the number of rounds of corrections (for example, to 2-3) in order to control the costs and time of the order.   
• the stage involving the delivery of the finished materials, which follows the client’s approval of all designs and payment. The visual identity contract should precisely specify the formats, quality, and resolution of the files to be delivered, as well as the moment of transfer of copyright. 

Visual identity agreement in Poland – defining the terms of cooperation: deadlines, communication, right to withdraw from the agreement 

The visual identity agreement should specify the deadlines for the completion of individual stages and the entire order. Pursuant to Article 455 of the Polish Civil Code, if the deadline for performance is not specified or does not result from the nature of the obligation, the performance should be fulfilled immediately after the debtor is called upon to perform it. Nevertheless, it is advisable for the contract to specify the deadlines precisely, which will help to avoid ambiguity. Of course, it is possible to specify the schedule by creating a detailed appendix to the contract, which forms an integral part of it.

The visual identity agreement should specify the means of communication (e.g., email, telephone, online platforms), the persons responsible for contact on the client’s side, and the deadlines for responding to messages. This will enable efficient and effective exchange of information between the parties, minimizing the risk of delays in project implementation and, consequently, claims on the part of the client.

The Polish Civil Code provides for general rules for withdrawal from a contract (Articles 491-493 of the Polish Civil Code). However, a visual identity agreement may contain additional provisions regarding withdrawal that are specific to a given order. For example, the contract may specify in which situations the client may withdraw from the contract due to the fault of the graphic designer (e.g., defective performance of work) and what the financial consequences of withdrawal will be (e.g., refund of remuneration, retention of deposit, contractual penalties). The analyzed contract template contains detailed provisions regarding withdrawal from the contract, which is very beneficial from the point of view of legal security for both parties.

Visual identity contract – transfer of rights and fields of exploitation in accordance with the Act on Copyright and Related Rights

From a legal point of view, in Poland, the provisions concerning copyright are of key importance in a visual identity agreement. A visual identity agreement should regulate in detail the transfer of economic copyright from the graphic designer to the client.

As a rule, creators are entitled to economic copyrights to their works (Article 17 of the Polish Copyright and Related Rights Act). In order for the client to legally use the design, it is therefore necessary for the graphic designer to transfer the economic copyright to the client. A visual identity agreement should precisely specify the moment of transfer of rights (e.g., upon payment of remuneration, which will certainly be in the interest of the graphic designer) and the scope of the transferred rights. 

The Polish Copyright and Related Rights Act (Article 50) contains an open catalog of fields of exploitation, i.e., ways of using a work. A visual identity agreement should exhaustively list the fields of exploitation in which the client will be entitled to use the design. So what fields of exploitation should be specified in the agreement with the graphic designer?

Examples of fields of exploitation in a visual identity agreement include:

• recording and reproduction of the work (e.g., printing, copying),
• marketing the work (e.g., selling, sharing),
• distributing the work on the Internet,
• using the work for advertising purposes,
• registering the work as a trademark.

The agreement should also specify the territorial scope (e.g., worldwide) and the duration of the transfer of copyright.

Our experience shows that a clear definition of the fields of exploitation (i.e., the ways in which the design can be used) is essential for the client to be able to legally use the visual identity in their business. The fields of exploitation should be as broad as possible and include, for example, recording and reproduction, marketing, distribution on the Internet, or use for advertising purposes. Failure to specify the fields of exploitation may lead to doubts as to the scope of the client’s rights to use the design. 

It is also worth considering reserving a so-called exclusive or non-exclusive license if the rights are not fully transferred. In this case, the duration, territory, and license fee should also be specified.

Visual identity agreement – graphic designer’s responsibility, copyright protection

The graphic designer should make a statement guaranteeing that the designs created by them under the visual identity agreement are free from legal defects, i.e., they do not infringe on the rights of third parties (e.g., copyrights, trademark rights). This applies in particular to copyright (Polish Act of February 4, 1994 on copyright and related rights), personal rights (Articles 23 and 24 of the Polish Civil Code) and industrial property rights (Polish Act of June 30, 2000 on industrial property rights). This will allow you to avoid third-party claims and provide the client with full legal protection and peaceful use of the visual identity without fear of infringing intellectual property rights.

The contract for the creation of a visual identity should also regulate the issue of liability for materials provided by the client for use in projects. It is in the graphic designer’s interest to limit liability for copyright infringement if it results from defective materials provided by the client. For example, the agreement may stipulate that the client is responsible for the legality and compliance of the materials provided, and the graphic designer is not liable for any claims arising from their use.

A contract for the creation of visual identity should include provisions that protect the graphic designer against the use of their designs in a manner inconsistent with the contract or infringing their copyright, for example, by prohibiting their modification without the graphic designer’s consent, limiting their use to previously agreed fields, and introducing a clause requiring the graphic designer’s consent before any further transfer of rights to the designs to third parties.

Visual identity agreement – graphic designer’s remuneration

A visual identity agreement should clearly and unambiguously specify the amount of remuneration for the performance of the order. Remuneration may be set as a lump sum or an hourly rate, depending on the nature of the work and the preferences of the parties. It is worth ensuring that the terms of remuneration are precisely formulated, as this helps to avoid misunderstandings and ensures transparency in both payment issues and deadlines. The agreement should also specify payment deadlines, the method of settlement, and any advance payments or deposits.

In the case of a mixed contract, which combines elements of different types of contracts (e.g., a contract for specific work and a contract for the provision of services), it is also possible to divide the remuneration into two parts, according to the nature of the services provided. Such a division allows for a more accurate reflection of the scope of work and settlement of the order in a manner appropriate to the type of services provided.

The part of the remuneration related to the achievement of a specific result, such as the creation of a graphic design, logo, brand book, or other elements of visual identification, may constitute remuneration for the work. In this case, the remuneration is usually determined in the form of a lump sum for the entire work performed, which allows for a clear determination of the amount of remuneration before the start of the project.

The part of the remuneration that relates to activities not directly related to the result but related to the performance of services, such as branding consultations, customer needs analysis, workshops, or consulting, may constitute a lump sum remuneration. In such a case, the remuneration may be determined on the basis of an hourly rate or as a lump sum for a specific package of services, depending on the nature of the services provided and the agreement between the parties.

The parties may also agree that the customer will pay a deposit towards the remuneration, which is in accordance with the provisions of Article 394 of the Polish Civil Code. The contract should specify the amount of the deposit, the terms of its payment, and the rules for settlement in the event of non-performance or improper performance of the contract.

The visual identity agreement should specify the payment dates for each installment of the remuneration. Usually, payment is made after the completion of specific stages of work or after the acceptance of the entire project. This payment system allows for monitoring the progress of work and ensures fair settlement for the services provided or the work performed.

Visual identity contract – confidentiality clause in a visual identity contract

Often, when working with a graphic designer, clients provide confidential information that may constitute a trade secret within the meaning of the Polish Unfair Competition Act. In such cases, the visual identity agreement should include appropriate confidentiality clauses that oblige the graphic designer to protect this information. The confidentiality clause should precisely define what information is considered confidential, how long the confidentiality obligation lasts, and what the consequences will be in the event of a breach of this obligation. As a rule, this will be an obligation to pay a contractual penalty. 

In our experience, confidentiality clauses are particularly important when working with clients in sectors where information protection is crucial, such as the financial, medical, or consulting sectors. In such industries, the protection of trade secrets and sensitive data is not only a legal requirement but also the basis for trust between the parties to the cooperation. Therefore, adequate protection of information in the contract becomes essential to ensure data security and protect the client’s interests.

Visual identity contract – withdrawal from the contract

According to the Polish Civil Code (Articles 395-402), the right to withdraw from a contract is the right of one of the parties to the contract to terminate it. In the event of withdrawal from the contract, the parties should return to each other what they have provided, and if this is not possible, pay compensation. The provisions of the Civil Code stipulate that the party withdrawing from the contract is obliged to return the benefits received, and the other party must return the remuneration.

The agreement should specify in detail the situations and conditions under which each party may withdraw from the agreement in order to avoid ambiguity and potential litigation. It is advisable for such provisions to be precise and tailored to the specific nature of the cooperation between the parties.

Our experience shows that it is worth including detailed provisions on withdrawal from the agreement, which supplement the general provisions of the Polish Civil Code. 

For example, an agreement for the creation of a visual identity may specify precisely:

• In what situations each party may withdraw from the contract, e.g., in the event of a delay in the implementation of the project, dissatisfaction with the quality of performance, or other circumstances specified in the contract—however, it is important to specify them as precisely as possible. 
• The deadline for withdrawing from the contract; it is important to specify the time frame within which a party has the right to withdraw, which ensures clarity as to when this right can be exercised.
• What are the financial consequences of withdrawal, e.g., refund of remuneration, retention of deposit, obligation to pay for the part of the work already performed, as well as other financial arrangements depending on the progress of the contract.
• What designs are the client entitled to in the event of partial withdrawal from the contract, e.g. if the client decides to withdraw from part of the project, the contract for the creation of visual identity should specify whether the client has the right to retain part of the materials or designs, and whether they bear any costs related to this partial withdrawal.

Thanks to such detailed withdrawal regulations, both parties are certain of their rights and obligations, which minimizes the risk of disputes and ensures fair settlement in the event of contract termination.

Visual identity creation agreement and the GDPR in Poland

In connection with the GDPR, the visual identity agreement should include provisions regarding the processing of the parties’ personal data. The agreement should include information regarding:   

• the purposes of data processing, i.e., performance of the contract, issuance of invoices,
• the legal basis for processing, i.e., Article 6(1)(b) of the GDPR (performance of the contract), Article 6(1)(c) of the GDPR (legal obligation),
• the period of data storage, as a rule until the expiry of the limitation period for claims,
• data recipients, e.g. accounting office, law firm,
• the rights of the parties, including the right of access to data and the right to rectify data.

Final provisions in the visual identity agreement

The visual identity agreement should clearly indicate the persons responsible for its implementation on both sides, which facilitates communication and prevents misunderstandings. Providing contact details, such as e-mail or phone number, ensures effective exchange of information.

During the execution of the order, the agreement may require changes. It is important to specify the form of making changes – usually in writing (an annex to the agreement), but in the case of minor modifications, changes via email may also be acceptable.

If the graphic designer intends to use subcontractors, the contract should specify the rules for their employment, the scope of work, and the responsibility for the subcontractors’ activities.

The contract may also include a prorogation clause indicating the court competent to settle disputes. If no such clause is included, the jurisdiction of the court is determined by the provisions of the Code of Civil Procedure.

Visual identity contract – summary

So how do you write a visual identity contract under Polish law? What should a graphic design contract contain? A visual identity contract is a complex legal document that goes beyond mere agreements on aesthetics and appearance. Careful preparation is absolutely crucial, as it regulates not only the scope of graphic design work, but also fundamental legal issues such as copyright in the agreement with the graphic designer, the liability of the parties, payment terms, and the confidentiality of information provided by the client.

Comprehensive consideration of all the elements discussed above, i.e., a detailed definition of the subject matter of the contract, the rules of cooperation, the rights and obligations of the parties, together with precise references to the relevant legal provisions—in particular, the Polish Copyright and Related Rights Act and the Polish Civil Code—will effectively protect the interests of both parties to this legal relationship. 

What is more, a properly structured visual identity agreement will ensure professional and transparent cooperation, minimizing the risk of misunderstandings and potential disputes, which cannot be overestimated in the context of long-term business relationships. 

It should be remembered that the specifics of copyright and intellectual property agreements are complex, and in case of any doubts as to the interpretation of individual provisions of the agreement or their compliance with applicable regulations, it is always worth consulting the content of the agreement with an experienced lawyer specializing in copyright and contract law.