Copyright or not?

What should I do?

[victoryrun]

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?

--VR

[katana_one]

I am not a lawyer, but as far as I know there isn't anything you can do. You were contracted for work, which was completed by you and paid for by your client. Unless you have a contract stating otherwise, that work now belongs to your client and they can do with it as they please.

[Labyrinth]

Actually, copyright ownership is distinct from the work which is copyrighted -- if ownership is not specified in the contract and the contract does not specify "work for hire", then odds are the graphic creator still owns the copyright.

Did the site owner inform the other company that she did not own the copyright of the images? Or did she sign a contract saying that she did own the copyright (a common inclusion when using the existing works of a client)? If so, your beef is with her, not the company creating the images.

If they didn't have such an inclusion in their contract, your beef is likely with both the creators and the site owner who used the banner.

What do you want to get out of this? Other than the lesson that copyright ownership and reproduction rights should be included in your contract?

[netguy]

Labyrinth, is correct.. if you do not specifically have a 'work for hire' agreement, the designs are still owned by the creator.

This is something that few companies think about when they have web design services performed. They wrongly assume that because they paid for it, they own it.

Personally, I never worry about a client using a portion of one of my designs for incorporation in other designs for the same client. There also may be design elements from a project that I use in another client's design - so as far as I'm concerned, it balances out.

My bigger concern is not with a client's use, but some smoe that just outright steals a design and trys to copyright it as their own original work.

While you may be on firm footing from a legal standpoint, I don't see any benefits in having a reputation of going after your own clients.

Steve

[katana_one]

Interesting, I always thought it was the other way around. But a quick googling confirms that contract work is NOT "work for hire" unless specified in the contract.

Hmm. Now I can go sue a former "employer" who claimed I was an independent contractor and not an employee (for tax reasons) ...

>:-)

[hunderdown]

katana_one, the tax issue is decided on different grounds--you probably can't sue that former employer! One can actually do a project that is work for hire for tax purposes but is NOT for copyright purposes...

[Marcia]

katana_one, were you an employee or a contractor? What was the arrangement? Not likely you can easily sue, but I've had a situation where I was called a contractor (for them avoiding paying some taxes) when in actuality by IRS definition it was definitely employee. I technically could go to the IRS and it would cost them probably over a hundred thou in back taxes for many, many people over the years - but I let it go, though I'm not sure it was the wisest thing.

Work for hire has to be spelled out, otherwise the creator owns the copyright unless specifically handed over in writing. What the other designer did with making the banners was create a derivative work - not allowed actually without permission of the copyright owner. But it isn't worth making waves over unless it happens again and hurts you in some way.

BTW, I had someone lift a whole site I designed, take my name off the copyright and put their own name on. Their site was removed from Google (and stayed out for several years). After they refused to make a change, I got to their host, who changed the site in a hurry within a day. But that was outright nasty tackiness on their part.

I generally just give it over as a matter of good will.

[katana_one]

You guys are taking me far too seriously. ;)

I don't actually consider this guy worth my time, no matter what the case was. But trust me, he was a real jerk. I thought I was an employee, but he claimed that I was a contractor - of course, I never signed any contract ("work for hire" or otherwise). So I guess all the graphics work I did while in his shop still belongs to me.