Client stole our comps
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- unknown
Here's a good one.
We have a client.
We did some work for them.
We got paid after much hassling, BS, etc.We did some comps for them for a mailing piece for them to send out.
They made a deposit on the job and then decided not to do it at all.
So my bosses go in there the other night and see that they've scanned one of the comps, stretched the image and turned it into a table card.
This comp also happens to contain a stock photo that was never paid for.
(it was a comp use photo - we would have use the purchased final one in the final layout)So, how big a deal is this?
What can we do?These guys have also been real good at getting quotes from us and then using it as a pricelist to find someone to undercut us.
Not to mention they wanted a CD containing their logo files in every single format possible for Mac and PC "just in case".What do you think the best course of action is?
- unknown0
bump
- nmata0
i don't comment often on this board, but this one's a pet peeve - when you work as a graphic designer, i.e. designing logos for people, you are NOT creating a piece of art that you own rights to and can charge for usage. what you ARE doing is called 'work-for-hire', and it means that once you've been paid, it's not yours anymore.
there is a BIG difference between photography/illustration and design, although both photography and illustration can also be done as work for hire.
a lot of you would benefit a great deal from actually talking with a lawyer (if you're working on your own), or talking with people who have a better handle on the difference between 'graphic designer' and 'artist'.
- spoonernyc0
do you have a copy of that "beefed up" contract you mentioned earlier in the thread?
would be interssted in seeing what points are raised in it..
thnx
spooner
- Turtle0
I was there when Exador saw the commercial....he was pretty pissed! Never saw a cent for his idea.....bastards!
- monkeyshine0
Why don't you send the company a bill, including the price of the stock photo and tell them that this is what they owe you for usage of that comp and if they fail to pay you, you will be forced to inform the stock photo place that they are in copyright violation?
When you design a logo for a company, you sell them usage rights. If you design the logo with the understanding that they are using it for letterhead and then they use it for bus ads and tv commercials, then they have to pay for that usage. Right?
- unknown0
get a lawyer and sue them
- nmata0
monkeyshine - wrong. a lot of people (mistakenly) believe that they have the right to control another company's branding, simply because they created the logo, but you'd be hard-pressed to find a court in the country that will allow you to extort money from a past client.
a lot of the arguments i've seen here and on other boards are usually the 'well, my company has a contract that says we own the logos we develop' or something like that. reality is that you can write whatever you want into a contract, but getting that to hold up in court is a whole different thing.
- gravityroom0
nmata -
I don't do work for hire on logo work unless the client wants to pay for it. I give them the option to purchase full rights and if they don't think its fair, they can use another designer. No big deal to me. I've had plenty of work.
I learned the hard way years ago (and I've hired lawyers on a few occasions) that rights usage is up to the creator. Most companies want work for hire and that's fine. They have to pay me more in that situation.
All this must be specified in your contract or you're in trouble.
- unknown0
They have to pay for usage. Just like photography. It is extortion. but that's business.
- jtmdesign0
I know this may sound lame. However if you have a lawyer friend have them draft a intimidating letter which may force or scare them to "settle" if the company is smaller and starting out they usually will not want to face such problems as this. We are business people too even though we are designers/artists we still sell and promote a product. I have done this and it worked very well. This pisses me off b/c it just goes to show how much people do not appreciate our craft. Hey but what do I know I am just starting out.
- nmata0
talk to a lawyer fellas - ideally a corporate lawyer specializing in intellectual properties. once a company has paid you to develop a logo or identity, it is no longer yours. all the self-composed contracts in the world will not convince a judge that your client should pay you for the 'right' to put that logo on busses, signs, hats, brochures or whatever.
it's also important to realize that people's ignorance plays into this ; if a start-up with no money gets a letter from some designer saying 'i saw you using the logo i designed on some mailing labels. i want $xxx for that, because i own your brand and image', they may comply just to avoid paying a lawyer. this does not make it 'legal' or 'right', it just means you found a way to make a quick buck off of someone's desire to avoid legal action.
as for design being 'just like photography', very rarely is a photographic image as big a part of a company's image/brand as a logo. apples and oranges.
- unknown0
Look nmata.
Remember when you where in elementary school? When they took those class pictures of you every year? Did they give you the negatives when you payed for them? Nope. You get the finnished shots and had to pay extra if you wanted to order more.
That's business man. Maybe your just too generous or something. Which is good. But not if you try to make a living.
- phaln0
nmata,
By your logic, then, you're saying that the 'Just Different' campaign by Apple, if they had perhaps just hocked a bunch of high-res TIFF files of each personality and used them without express permission, it would be alright? Fair-use or unfair abuse?
I know it's a little off the topic, but I'd really enjoy knowing your view on that.
However, in the realm of this discussion, there has to be a factor of 'due diligence' that needs to be performed by each side before signing *anything*. I know it sounds terribly corporate and a seemingly loaded buzzword, but it's an advantage to have taken a day to read over any contracts they give you, and this includes your client reading through the contract, passing it by legal counsel, the whole nine yards.
Exactly how is a company going to defend themselves in court by saying "Well, uh, we didn't see that!" But there's their signature plain as day on the dotted line. The burden then falls on the client for being so ignorant as to pass over certain portions of the contract.
Anyhow, here is U.S. Code, Title 17, Sections 201(a) and (b), and 202:
201:
(a) Initial Ownership. - Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
(b) Works Made for Hire. - In the case of a work made for hire, the employer or other person for whom the work was prepared is
considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.202:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the
copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.Case being: If your contract states you own copyright and they're paying for usage, you certainly have a case under U.S. Code, Title 17, Section 201(b). Read the last part.
- nmata0
montreal -
first off, thanks for voicing opinions in an intelligent fashion - every so often i see discussions like this one, without name-calling and such, that make me think that there's still some value in this site.
secondly, my original point was in regards to design, specifically developing a logo. design is not photography, and is not treated the same way. there is a HUGE difference between rights to a photograph, that may be used in one small part of a company's advertising or marketing plan, and a corporate logo or identity, that becomes an integral part of a company's brand. i do understand the current business model for most professional photography, however i don't think we're arguing the same point.
- nmata0
phaln:
missed your post while typing, but my last one goes over the difference in photography usage, which i think montreal was talking about, and a logo as part of a company brand.
i guess this did get a little off-topic, but a good discusssion, nonetheless.
- Biofreak0
right. interesting stuff and all but im still stalled on exadors thoughts.
exador... ... uh... i think my brain would pop. i think it would just absolutly fucking pop. damn. damn. that is horrid. damn. damn.
- phaln0
From the AIGA Ethical Practices Handbook:
"A professional designer will clearly outline all intellectual property ownership and usage rights in a project proposal or estimate."
And later on...
"Rights/Ownership
All tangible materials in all
circumstances remain the property of the Designer. All rights and ownership apply to preliminary concepts, works in progress and finished material, whether the project is completed or canceled.The Client will be entitled to limited and specific usage rights of such materials only for the purpose of reproduction, after which all materials will be returned, unaltered, to the Designer within 30 days of use.
Upon payment of all fees and
expenses, the Designer will grant
all reproduction and/or usage
rights, as outlined in the attached estimate/proposal, for all approved final materials created by the Designer for this project.If the Client wishes to make any
additional use of the materials, the Client agrees to seek permission from the Designer and make suchpayments as are approved by the parties at that time. Where alterations or retakes are necessary, the Designer will be given the opportunity to make such changes at an agreed-upon additional charge."Take that as you will.
- nmata0
good stuff, yet neither legally binding, nor from an un-biased source.
i think the whole idea of making sure that everyone (client, designer) clearly understands their rights is essential. the aiga provides a valuable starting point for that. again, the language in the ethical practices handbook lends itself to an image, or an ad. it in no way addresses the concept of brand ownership.
i think a better parallel than photography is domain name ownership - every so often someone squats on a domain and then tries to make their fortune selling it to some company. a lot of times in the past, it worked. now that people are more informed, and more importantly, willing to pay lawyers to fight over intellectual properties, it doesn't always work out for the 'entrepreneur' (sp?) who stole the domain. the reason? the company in question owns their brand, their corporate identity. no amount of legalese will change that.
- Chip_Duggit0
I have a similar, but worse story for you all. I was an in-house art director for a company that had about 5 different companies that it owned. Each needed a logo, stationary package, and print collateral. Myself and the junior designer both worked our asses off on all of these, only to have about 20 of them shot down each time. These were the best ones out of the hundreds we developed over the time we were there. The boss's wife would always want something changed so it was her own, and we would (sadly) comply. Needless to say things that they changed and then used in the end were far worse than how we pitched them.
So surprise, the whole company starts to tank. I see the writing on the wall and haul ass, leaving my friend the junior designer to fend for himself. He gets his notice one afternoon and is forced to leave after hearing he was let go about 15 minutes before hand. He has no time to collect his files or anything that shows what he has done, other than what is on his personal website in his portfolio. After he leaves, the IT cronies come in a see that he had been updating his website at the office when he had nothing else to do, and then tell the big boss. Big boss pitches a fit, calls junior designer and tells him that he has to come pick up his final check personally from him. Junior designer goes in, not knowing that big boss has seen his unused work on the junior designer's site, and forces him to sign some slip of paper that says that he has to remove all of the work he did for the company because it infringes on their trademarks and servicemarks, and is a misrepresentation of the companies.
So now the junior designer is out of a job, and the work that he has done for the past year cannot be shown (even though hardly any of it was ever used) on his personal website for him to get another job. He has since gotten a new website and posted the materials again, without knowledge of previous big boss.
In the end, the big boss currently has 5 sexual harassment cases pending against him, has failed to pay the outdoor companies that did all of the billboards, bus signage and printers that have printed all of the materials. He has had to close 3 offices, lay off 70 people, and still has the gaul to call himself a 'Christian'. What comes around most surely goes around.
- monkeyshine0
nmata, can you state a case where a court has thrown a case out or sided with a company on this issue? It is my understanding that the designer doesn't own the brand but does own the artwork created for the brand. Again, I'm no lawyer and this is mostly from AIGA information gathering.
I think the relevance of this is if Company X comes to me and says we need a logo / identity system but we are a mom & pop store with only a local market, my fee would be much less than if an international corporation comes to me and says the same...and I have in fact done some design work for a large corporation who bought out rights...so there must be some legal ground here.
Speaking of lawyer-speak, someone said to me this a.m...DAMN Benjamin Franklin for such convoluted language! :)