Discussion:
What is the name of your state?FL
I was hired by a company to do a logo. They didn't want to pay after it was done. They said they would not use my work and hire a cheaper designer to copy my work. Can they do this? If the new designer makes something close to mine is that infringment?
Any advise would be great.
Answer:
I was hired by a company to do a logo. They didn't want to pay after it was done. They said they would not use my work and hire a cheaper designer to copy my work. Can they do this? If the new designer makes something close to mine is that infringment? Yes, someone else copying your work would likely constitute copyright infringement; however, unless you have registered the copyright with the copyright office prior to the copying, chances are your recovery would be less than the cost of the lawsuit (if you do have the copyright registered, or get it registered before they copy it, then you mgiht have a shot at a bigger recovery).
However, why not just go after them for breach of contract? Did you have some sort of contract with them to do the work? A breach of contract claim will be MUCH easier than an infringement claim -- for example, if the cost of the work was less than your small claims limit, you can go to small claims court for breach of contract. However, even if the amount of $$$ is small, ALL copyright cases go to Federal court, which means a lawyer, etc.
If you have a contract, that's the way to go.
Answer:
Isn't anything I create mine? Do I need to register it for copyright for protection? I thought as a designer anything I create is protected. This was an oral agreement that he would pay me for services. I am just worried that they can take my logo and not pay me for it. Then hire another designer and reproduce the same logo and have it be that designers. Do I have any protection here? If we go to court it would be small claims and with the proof I have I know I can win. I just want to know can they do what they are doing legaly.
Answer:
Isn't anything I create mine? In general, yes, unless you have some sort of contractual agreement otherwise.
Do I need to register it for copyright for protection? I thought as a designer anything I create is protected. You are right, anything you created is protected as soon as it is "fixed in a tangible format." However, from a practical standpoint, your options are limited if you do not register your copyright. If your copyright is unregistered, you still have a copyright, but if someone else infringes your copyright and you need to sue them, the ONLY rememdy you have is tosue for "actual damages" -- that is, the amount of money you can prove to the court you lost because of the infringement.
However, if you have a registered copyright, you can still sue for actual damages, but you can also potentiall sue for "statutory damages," which are damages with amounts fixed by statute, which means you don't have to prove damages (or even HAVE any damages). Furhter, you can also sue for injunctive relief -- restraining orders, that sort of thing.
So if you do end up having to sue the guy for copyright infringement, it may be very difficult to find a lawyer to take the case if you don't have a registered copyright, because unless you have significant damages (and the other party has the oney to pay the damage award), there just isn't anything in it for the lawyer. Plus you'll probably have to pay for everything out of pocket up front.
If you do have a registered copyright, then as long as the other party has some ability to pay off a damage award, it should be much easier to find a lawyer to take the case, because you don't have to "prove up" speculative amouts of damages.
And finally, if you don't have your copyright registered, you'll have to prove in court that you created the logo and own the copyright. If you have a copyright registered, you are presumed to be the owner, and the other party has a high burden to try and show you don't own the copyright.
I am just worried that they can take my logo and not pay me for it. Then hire another designer and reproduce the same logo and have it be that designers. That's why it may be worth it to register your copyright.
Do I have any protection here? See above with respect to copyright infringement. However, you would be better off suing under breach of contract -- but with only a verbal contract, it may be hard to prove that a verbal contract existed.
If we go to court it would be small claims and with the proof I have I know I can win. What "proof" do you have? A small claims court is pretty unlikely to rule on copyright infringement, and unless you have something more than a verbal contract...
I just want to know can they do what they are doing legaly. No, of course not. They breached the contract by not paying you for the owrk, and they will be committing copyright infringement if they do the logo you designed themselves. However, you are in a tough spot -- unless you have more than just the verbal agreement, you may have a difficult tie proving a contract existed, and you may not have enough "damages" to make it worthwhile to pursue copyright infringement, particularly if you choose to not register the copyright.
Answer:
So in order to have a clean cut case with exception of my proof he lied I need to get a copyright for my logo? I am amazed that he can have someone just copy my work. Are you saying without my proof he can copy my logo and I will have a hard time seeking damages. All I really want to do is stop him from using it or anything that looks like it. Can I tell him if he uses it he is infringing on my right under, 17 USC Section 101, et seq.
Answer:
So in order to have a clean cut case with exception of my proof he lied I need to get a copyright for my logo? No, that's not what I said. What I did say is that when you have a registered copyright, you don't have to PROVE that you own the copyright -- the court presumes it. If you don't have a registered copyright, you'll have to prove you own the work in court. Now that may be easy to do -- you may very well have a "clean cut case" without a registration -- but if you have a registration, you don't have to prove anything.
I am amazed that he can have someone just copy my work. Why are you amazed? Just because he can do something doesn't make it legal.
Are you saying without my proof he can copy my logo and I will have a hard time seeking damages. No. What I said was without a registration, you are limited to "actual damages." If you can prove that you own the copyright, he misappropriated it (infringed on it) and you suffered damages, then you can prevail.
If you have a registration, then all you have to prove is that he infringed -- you've immediately gotten rid of 2/3's of the case!
All I really want to do is stop him from using it or anything that looks like it. To do that, you need a restraining order, which is injunctive relief -- which you need a registration in order to sue for...
Can I tell him if he uses it he is infringing on my right under, 17 USC Section 101, et seq. Of course, but if he doesn't cease and desist, what then?
Answer:
Ok I think I think I have a pretty good handle on this now. I need to register for copyright to have an tighter case but If I can prove I was the sole creator that should be good enough. If I am seeking damages a copyright will help me even more. I need to send a cease and desist. Then, if he still goes ahead and copies it I then take legal action. In the cease and desist letter should I give him 30 days to remove the logo from any collateral material? Also should I request that he send me something in writing stating everything has been removed? I thank you for your help. You have put me on a more productive legal path in protecting my logo.