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Copyright Or Not?


runninghorse
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I do graphic and website design. A client contacted me to do a website for them, which I did, and received payment for it. This client then contacted a very well known and very large company (that could also be considered one of my main competitors) for banner ad services. She paid them X ammount of money for an event that her and her husband were having, and this company "created" the banner ad by "lifting" the images from the website and adding a line of animated text with the event information. I am not sure what to think or do about this. The banner ad that was purchased for placement on this website has already come and gone (they only bought a month of rotation), and my client probably won't advertise with them anymore. But what kind of copyright infrigements were broken here? This other company didn't contact me about my images, nor did my client "authorize" the release/use of the images. However, she didn't say they "couldn't" either.

 

What are everyone's thoughts?

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This is going to sound somewhat harsh, so I apologize in advance.

 

It's none of your business.

 

You created the site and banners for her, I guess? She paid you making them her property and her right to use at will. If *she* has problems with the company lifting them it's her place to deal with - not yours.

 

Just my take on it.

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Thanks Thomas,

 

But what I wonder here is with the purchase of the website, did the 'ownership' of those images that make up the website then transfer over to the Client themselves?

 

Let's not forget the fact that this client paid for "banner ad services" which I was lead to believe included the design AND rotation services. The fact that they lifted my images and added a line of text really sells their services short. That's one of the reasons Client won't be going with them again in the future....

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Lisa,

 

That's in fact what I was wondering. However, although the website I did is now property of Client, those were still unique images protected under the US Copyright law in which I received payment for for initial creation, but not for subsequent modification by a third party...

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No, those things were not covered.

 

My concern isn't so much with the Client as it is with the other Company. The client really doesn't know much about the way these things work, she just basically tells people what she needs and signs the checks, so when she wanted to advertise this event on this larger website, she contacted them and was given a price which included banner design and rotation for one month. I feel like she got ripped off because the company didn't do anything original, yet was charging them the same amount that they charge other people to do original work....

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Just to echo Lisa and Mike, you were paid, your client now owns the website and everything else you did unless you specified in your contract that you retain the rights to any of it.

 

That's how contract jobs work unless specifed otherwise and both parties agree.

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I have to respectfully disagree with most of the responses so far. Runninghorse DOES unambiguously own the images he created.

 

The fact is (under US law anyway) that all works created by a person are automatically protected by copyright at the time they are put into a fixed (i.e. recorded, at least semi-permanent, verifiable) form. His stored copies on a hard drive would pass that test. The ownership of such copyright belongs to the creator alone, unless one of two conditions apply:

 

1. The creator created the work in the course of his or her work as an employee (not a independent contractor, mind you, but an employee). In this case, ownership belongs to the employer.

2. The creator created the work under the terms of a written contract specifying that the work was done as a "work for hire." In this case, ownership belongs to the person who hired the creator under contract.

 

In a case where a creator is hired without a "work for hire" contract, the person hiring him or her has an implied license to use the work within the scope of the original project, but only within that scope. The creator retains ownership of the work, and can even re-publish or sell it to another party at a later time. Furthermore, the hiring party would require the creator's permission to re-use the work in any other context; in practice, this has usually included even the use of elements of the work to promote the original project that the work was done for (i.e. using images in advertising the website as in this case).

 

See:

http://copylaw.com/new_articles/wfh.html

and

http://www.keytlaw.com/Copyrights/wfhire.htm

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The lesson here is to never do work without a contract making all this clear. If you do then you are leaving it up to a judge and much time, frustration and/or money to solve it.

 

Even if matman is right, and it sounds like work for hire to me even without a written contract, but I am not a lawyer, then do you want to pursue this? You said it's pretty much a moot point now since the banner's kaput.

 

The point of it is in your own words -

I feel like she got ripped off because the company didn't do anything original, yet was charging them the same amount that they charge other people to do original work.
You feel it's not fair, but then again, neither is life.

 

My advice, for whatever it's worth, is to learn from it, let it go and get a contract written up before your next client comes along. We may feel like small potato web/graphics designers but we are playing in the grown-up (read cut throat) world and we gotta start acting like big-time players to survive.

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Just to reiterate, you own anything that you create unless you agree otherwise. Without an employee-employer relationship or a written agreement specifically stating that you are doing work-for-hire, you do not give up ownership. Actually even in an employment relationship some employees have won cases where they were asserting ownership of their work and there was no explicit work-for-hire clause in their contracts (or no contract at all). Most employers who employ creative professionals write into their employment contracts language explicitly stating who owns the employees work.

 

The real lesson here is moreso for situations where you are hiring a creative person. Since the law is very much on the side of the creator when there is no contract, it is incumbent upon the customer to have a contract drafted to spell out the rights they wish to have regarding the work, whether complete ownership (a work-for-hire situation) or lesser specific usage rights.

 

Note that I'm not suggesting that creative contractors should go sans-contract. There are many other ways to get burned, and a contract is worth the time and/or money it takes to draw it up.

 

Here is the text of the actual law:

http://www.copyright.gov/circs/circ1.html

http://www.nwu.org/bite/copywfh.htm

 

And some more commentary thereupon:

http://www.nwu.org/bite/tipswfh.htm

http://www.adcmw.org/about/work_for_hire.html

http://www.ivanhoffman.com/work.html

http://law.freeadvice.com/intellectual_pro...rk_for_hire.htm

http://www.nonprofits.org/npofaq/16/40.html

http://www.himels-computer-law.com/copr.htm

 

Helpful sites about web design contracts:

http://www.weblawresources.com/mod_site_art.htm

http://www.ivanhoffman.com/dignity.html

http://www.legal-forms-kit.com/website-development.html

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To be sure, none of us are actual lawyers and saying we were told it was ok on an internet hosting company's forums wont hold a candle to anything no matter how great the hosting company. For a definitave answer one should consult a lawyer in the city you live.

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Rob's right. If you ever want to be sure of the facts regarding law, hire a lawyer. We can say all we want but I believe for every law that can be pointed out there is an overruling law or an exception that a lay person would not know about.

 

For instance, we all think you can't be tried twice for the same crime (double jeopardy) but if the crime falls in different jurisdictions you can be... for instance, Timothy McVeigh was found guilty in federal court for killing the government employees but he could also have been tried in state court for killing the rest of the people that weren't employees. OJ Simpson was found innocent of murder but it went to civil court and he lost.

 

There are other examples but as you can see, blanket statements often overlook key elements of things that only a pro (lawyer in this case) would know.

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If you ever want to be sure of the facts regarding law, hire a lawyer.

 

I am all for consulting with an attorney and using a professionally-prepared contract.

 

However, the above-expressed concerns are the primary reasons that I cited not one but at least a half-dozen pages on the subject that were written by lawyers as advice to creative professionals. Not to mention the US Copyright Office.

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But reading citations is not a guarantee of getting the whole story. I just don't want to see anyone "go legal" on someone for taking their work when 5 minutes with a copyright lawyer would tell them that they are wrong - or miss the case to recover damages because they 'think' they can't.

 

I've seen folks think something is clear cut too many times to not comment about the necessity of asking someone who knows instead of just taking the advice of well-meaning folks who are not experts in the field... that's all. I've seen 100's of people say how evil GOTO is in programming but I can give examples of when it is beneficial and bordering on necessary, but that's my area of expertise - programming.

 

I'm not going to turn this into an "I'm right-you're wrong" spitting contest so give whatever advice you wish to and I've already expressed my opinions and the readers will do whatever they choose to do.

 

I hope you feel better about it at any rate, Ramsey, and do urge you to consider a contract to avoid future issues. In the world today you can't be too safe.

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