MicrostockGroup
Microstock Photography Forum - General => Off Topic => Topic started by: caspixel on October 04, 2011, 15:16
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I currently have a client who is getting harassed by their former designer. That designer is saying that the client can not use any of the graphics that the designer created for them (and the client paid for) because they were copyrighted by the designer. Has anyone ever heard of this before? How can this possibly be legal? That designer is also harassing other designers (not me...yet) who the client has hired to do work, claiming they can't use any of the designs to create work for that person either.
I honestly don't even know how this designer can claim that. Who would sell designs to someone and then not allow them to use any of it? Anyone know if there are *any* legal grounds or precedents here?
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and the client paid for
Are you absolutely sure that the client paid for *completely*?
I heard similar cases, but in the end the problem was always with this part.
If my client - after agreeing on a fee - won't pay me what's due, inventing weird reasons, sure I will do anything possible to prevent him using my project but that's not "harassing".
Otherwise, I can't see how the designer could do that.
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I know for sure the client paid for everything. In fact, the client paid for stuff the designer didn't even deliver.
But yeah, if the client didn't pay, then sure, the designer has a right not to release the work. But this stuff is happening even after invoices were paid and acknowledged by the designer.
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This is what contracts are for. There are a lot of laws that protect artistic creations, so the client should have a contract to make sure they get what was agreed upon. If they don't, the artist can probably claim whatever they want.
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AFAIK you need to differentiate between usage rights and intellectual property: while the client might have paid for the rights to use a design, the designer might still have the intellectual property rights, meaning you can not simple change his design without his consent - for which the client might need to pay beforehand...
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The designer gave them the layered files and the vector art and even instructed to them how to change it, showing intent to let them use the art as needed for various things. Apparently the designer did not send a contract initially, but accepted payment, and then tried to force a contract on the client later, after things started getting sour.
As far as I know, verbal/email agreements and paid invoices are also contracts.
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AFAIK you need to differentiate between usage rights and intellectual property: while the client might have paid for the rights to use a design, the designer might still have the intellectual property rights, meaning you can not simple change his design without his consent - for which the client might need to pay beforehand...
This sounds like what this designer is doing, except after the fact. They did not say anything about IP vs usage when initially creating designs for the client and even gave them the layered files and vector art.
Seems like a pretty sh*tty thing to do to someone, IMO.
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Take a look at the Work for Hire law. This may apply depending on how the work was ordered.
http://www.keytlaw.com/Copyrights/wfhire.htm (http://www.keytlaw.com/Copyrights/wfhire.htm)
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If the client has fallen out with the Designer then it's often quite normal for the Designer to get a bit shirty. If he didn't state the work he produced was copyrighted I don't think he can do much about it, but he could become spiteful and say he accidental deleted the source files or something similar. Burning bridges like that is not a good outcome for either party - its happened a few times to me but I use a different tactic, I say it's going to cost X amount of dollars to backup all their work on to DVD and post to them. X being a fairly substantial amount. Its worked every time for me anyway.
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The designer gave them the layered files and the vector art and even instructed to them how to change it, showing intent to let them use the art as needed for various things. Apparently the designer did not send a contract initially, but accepted payment, and then tried to force a contract on the client later, after things started getting sour.
As far as I know, verbal/email agreements and paid invoices are also contracts.
I wouldn't trust any of that as binding. Most conversations and emails are open to interpretation and not as specific as a contract. There are a lot of different types of rights you can sell. And, I think any creative rights, copyrights or moral rights should always fall to the creator if no clear agreement or arrangement can be found. After all, signing an NDA is a lot different than saying, "Don't worry. I'll keep your secret".
That doesn't mean this particular artist is right, but I don't see anything wrong or unusual about them fighting for what they think is right or what they think they agreed to.
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Take a look at the Work for Hire law. This may apply depending on how the work was ordered.
[url]http://www.keytlaw.com/Copyrights/wfhire.htm[/url] ([url]http://www.keytlaw.com/Copyrights/wfhire.htm[/url])
The work for hire law is the worst thing to happen to the creative industry. It is such a dirty little constitutional dodge when applied outside of its intended scope, which is to cover companies from being sued by their actual employees for copyright infringement e.g. so a coder working for Microsoft doesn't have copyright for the code they create while in Microsoft's employ and so on. Every client tries to foist it on me every time I take on a contract now, and I never agree to it on principle.
You're mad if you do because it means you never legally have copyright to the work you created for the client, so you cannot withhold rights till they pay up.
Back on topic, I would avoid getting involved. Without seeing all the correspondence between the client and designer you don't know what usage rights were transferred, if it was work for hire etc. If you must work for this client, make sure you have a contract protecting you. It needs to say something about the client guaranteeing they have the rights use all the files they send you.
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Thanks for your input everyone. You have been very helpful!!