Comments on: My Improper Trade Practices http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php A blog for graphic designers Fri, 10 Sep 2010 20:52:37 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Tim http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4072 Tim Thu, 02 Nov 2006 07:32:22 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4072 I may have misunderstood this, but is this not a trademark dispute rather than a copyright one? IANAL (and this is not legal advice), but regardless of any rights transfer made in respect of the work's copyright, if that work was asserted as being a trademark by that company (through registration, or use in the marketplace) then they do have certain rights to control it's use. However, as far as i know, <strong>trademark</strong> infringement occurs when using a trademark to market a product or service which is identical or sufficiently similar to the product marketed by the company who 'owns' the trademark. Since you were not using X-company's logo to market pipes or other plumbing products, I'd say that you might have a pretty good defense from this point of view. In addition, the right of a trademark holder to enforce a trademark can depend upon their active use of that trademark in the marketplace. If X-company never used your logo, they might not have trademark rights in it at all. If, however, this is a case of <strong>copyright</strong>(rather than trademark) infringement, you should check firstly whether you transferred your rights in the work to X-company in your contract with them. If not, then they haven't got a leg to stand on from a copyright point of view, as you hold the copyright. If you did transfer the rights, however, and if you are in the US (but not in the UK and I don't know about any other jurisdictions), you'd probably have a pretty good defense under the standard Fair Use limitations and exceptions. It sounds like you've been unfairly treated, so I'd personally reccomend getting in touch with a lawyer and getting this thoroughly checked out. (Once again, <strong>I am not a lawyer, and this is not legal advice</strong>) Good luck! I may have misunderstood this, but is this not a trademark dispute rather than a copyright one? IANAL (and this is not legal advice), but regardless of any rights transfer made in respect of the work’s copyright, if that work was asserted as being a trademark by that company (through registration, or use in the marketplace) then they do have certain rights to control it’s use.

However, as far as i know, trademark infringement occurs when using a trademark to market a product or service which is identical or sufficiently similar to the product marketed by the company who ‘owns’ the trademark. Since you were not using X-company’s logo to market pipes or other plumbing products, I’d say that you might have a pretty good defense from this point of view.

In addition, the right of a trademark holder to enforce a trademark can depend upon their active use of that trademark in the marketplace. If X-company never used your logo, they might not have trademark rights in it at all.

If, however, this is a case of copyright(rather than trademark) infringement, you should check firstly whether you transferred your rights in the work to X-company in your contract with them. If not, then they haven’t got a leg to stand on from a copyright point of view, as you hold the copyright. If you did transfer the rights, however, and if you are in the US (but not in the UK and I don’t know about any other jurisdictions), you’d probably have a pretty good defense under the standard Fair Use limitations and exceptions.

It sounds like you’ve been unfairly treated, so I’d personally reccomend getting in touch with a lawyer and getting this thoroughly checked out. (Once again, I am not a lawyer, and this is not legal advice)

Good luck!

]]> By: Jonathan Sluys http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4071 Jonathan Sluys Mon, 09 Oct 2006 20:01:11 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4071 For the curious Google has a great page caching feature, that can be quite revealing... Adrian: is the slight logo variation on their map page anything similar to what you designed for them? For the curious Google has a great page caching feature, that can be quite revealing…

Adrian: is the slight logo variation on their map page anything similar to what you designed for them?

]]> By: Douglas d'Aquino http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4070 Douglas d'Aquino Fri, 06 Oct 2006 21:50:07 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4070 that thing about "being a wuss" is not entirely correct, I guess... haha sorry, just kidding... Fortunatelly I never had been in a situation like that, but some friends of mine had their work stolen several times... that is (I think) the worst thing that could happen to a designer... that thing about “being a wuss” is not entirely correct, I guess… haha sorry, just kidding… Fortunatelly I never had been in a situation like that, but some friends of mine had their work stolen several times… that is (I think) the worst thing that could happen to a designer…

]]> By: Douglas d'Aquino http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4337 Douglas d'Aquino Fri, 06 Oct 2006 21:50:07 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4337 that thing about "being a wuss" is not entirely correct, I guess... haha sorry, just kidding... Fortunatelly I never had been in a situation like that, but some friends of mine had their work stolen several times... that is (I think) the worst thing that could happen to a designer... that thing about “being a wuss” is not entirely correct, I guess… haha sorry, just kidding… Fortunatelly I never had been in a situation like that, but some friends of mine had their work stolen several times… that is (I think) the worst thing that could happen to a designer…

]]> By: Joe Moran http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4069 Joe Moran Fri, 06 Oct 2006 05:10:48 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4069 Live and learn. And get a lawyer. (Do thier Web site or stationery, too. :-) Just keep doing good design. Some people can't understand it. Enlightened ones can. It is what it is. R/ Live and learn. And get a lawyer. (Do thier Web site or stationery, too. :-)

Just keep doing good design. Some people can’t understand it. Enlightened ones can.

It is what it is.

R/

]]> By: Steve B http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4068 Steve B Fri, 06 Oct 2006 01:37:08 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4068 Adrian. Thanks for the response. FWIW, I think you are making the right call. Like you, I have been in the agency trenches for many years, albeit on the account service side, and have made my share of mistakes handling client issues. I've also worked with some exceptionally talented creative/art directors (like you) and with each campaign developed there is a piece of them in the work. The fact that you had a such visceral reaction when the client neglected to use your work is a good thing. It means you care about the quality of the work and that's a good thing. Keep pitching ideas that are better than the client deserves. Adrian.
Thanks for the response. FWIW, I think you are making the right call.

Like you, I have been in the agency trenches for many years, albeit on the account service side, and have made my share of mistakes handling client issues. I’ve also worked with some exceptionally talented creative/art directors (like you) and with each campaign developed there is a piece of them in the work. The fact that you had a such visceral reaction when the client neglected to use your work is a good thing. It means you care about the quality of the work and that’s a good thing.

Keep pitching ideas that are better than the client deserves.

]]> By: Adrian http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4067 Adrian Thu, 05 Oct 2006 19:54:28 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4067 Steve, you hit the nail on the head. It was for my 9-5 job. That is why I didn't know the details of the contract and can't share that info publicly. It is also why I am not putting up a bigger stink about the whole situation, since I still work for the agency. I like my job and have no reason to make waves, so I am trying to do the right thing. You are also right to read between the lines that my frustration with the project wasn't just with the client, it was also with my team. Maybe I should have put a more positive spin on it and said it was a learning experience for everyone involved. Steve, you hit the nail on the head. It was for my 9-5 job. That is why I didn’t know the details of the contract and can’t share that info publicly. It is also why I am not putting up a bigger stink about the whole situation, since I still work for the agency. I like my job and have no reason to make waves, so I am trying to do the right thing. You are also right to read between the lines that my frustration with the project wasn’t just with the client, it was also with my team. Maybe I should have put a more positive spin on it and said it was a learning experience for everyone involved.

]]> By: Steve B http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4066 Steve B Thu, 05 Oct 2006 17:15:39 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4066 Adrian. After reading the following in the case study of your personnal design portfolio I have a question: "I think we were paid for the job..." and "It would be easy to blame the client, but the truth is that the account was poorly managed." Was this a freelance gig? Or was this a project thru your regular 9-5 job? Adrian.
After reading the following in the case study of your personnal design portfolio I have a question:

“I think we were paid for the job…” and “It would be easy to blame the client, but the truth is that the account was poorly managed.”

Was this a freelance gig? Or was this a project thru your regular 9-5 job?

]]> By: Joe Moran http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4065 Joe Moran Thu, 05 Oct 2006 05:46:56 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4065 X Corporation=bitches! Sue me!! R/ X Corporation=bitches!

Sue me!!

R/

]]> By: Chris Rugen http://www.beadesigngroup.com/blog/archives/2006/10/my-improper-trade-practices.php/comment-page-1#comment-4064 Chris Rugen Thu, 05 Oct 2006 00:55:48 +0000 http://www.beadesigngroup.com/2006/10/02/my-improper-trade-practices/#comment-4064 This, and other potential problems, are why I never discuss project specifics online, even the successful ones. My own online portfolio is very spare, just a taste to intrigue and give some context to my skills and range. I prefer to give actual explanations in person, so I don't have to censor myself (other than in ways dictated by common sense professionalism). As for the legal stuff, my understanding is that you stipulate it in the contract, or you pretty much have no rights whatsoever. This, and other potential problems, are why I never discuss project specifics online, even the successful ones. My own online portfolio is very spare, just a taste to intrigue and give some context to my skills and range. I prefer to give actual explanations in person, so I don’t have to censor myself (other than in ways dictated by common sense professionalism).

As for the legal stuff, my understanding is that you stipulate it in the contract, or you pretty much have no rights whatsoever.

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