6

Let me pose a hypothetical situation:

I hand-produce a very specific type of pen and ink design. I have sold my originals to friends and acquaintances who have them hanging in their houses. A graphic designer went over to one of these houses and saw my work. This designer liked it so much that we went into negotiations for me to make some similar designs for t-shirts for the company this designer works for. After I stated that I would want to retain copyright of my work and be paid a very small percentage of t-shirt sales, our negotiation came to an end. I never heard back from the designer.

Jump forward in time 1 year and the company the designer works for has come out with a new t-shirt design that looks almost exactly like the work that I have been producing for years.

When confronted with this fact the company offered to pay me not to talk about what happened.

What would one do in a situation like that? What could one do?

7

I would look into counsel from a lawyer. When you visit a lawyer you need to make sure to provide what you have in writing. Do you have proof that these designs were under negotiations? Also, by proof I literally mean X company sent you an email saying we would like to discuss with you about X design. Do you have a contract or draft of a contract that was under negotiations and mentioned in an email of revisions or talks about it? If all these negotiations are verbal and you have no proof you will have a tough case. If you can prove they want to be hush hush in a form of an email you might have a case, but as stated, consult a lawyer. All this will depend on your area. Be prepared to know this will cost money to go to court and if you cant prove all of it without a reasonable doubt in civil court you will have a tough case. If you can prove the talks in writing and they still proceeded without you that may be a case there, but again.. contact a lawyer. If you can prove without a reasonable doubt and have solid proof in a written form you could sue in civil court (here in America).

  • hypothetically :) I do have emails like that. We started to talk about a contract but then our negotiations ended. No contract was ever written up. – hypothetical Sep 12 '14 at 15:27
  • Sorry, "looks close" is not the same as "is identical". You don't own every image that is produced with ink and pen, so unless it's identical to one of your pieces, and you can prove that it is your piece and one prior to this tshirt run, then you are out of luck. – SnakeDoc Sep 12 '14 at 19:29
  • @Matt source please? Because if that is the case, then there is a lot more copyright lawsuits that need to be filed (including a few of my own) (even your profile pic would qualify then, you have mixes of star wars copyrighted material and Lyft's branding). In short, I call BS, the OP is out of luck, was too greedy during initial negotiations, and now is cut out. – SnakeDoc Sep 12 '14 at 19:31
  • 4
    @SnakeDoc "unless it's identical to one of your pieces, and you can prove that it is your piece and one prior to this tshirt run, then you are out of luck" - I'm no lawyer but this sounds patently wrong. The OP is describing a complex situation where a great deal of information would likely need to be collated by a legal expert before making a decision. This answer is a reasonable attempt at providing general non-professional advise. Coming in guns blazing with a ridiculous over-simplification is not productive. You then go on quantify the amount of t-shirts being sold. What?! – quant Sep 13 '14 at 1:42
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    @SnakeDoc look up 'derivative works'. You are incorrect that it's only copyright infringement if it's identical. Also, 'business as usual' is terrible advice. Though it may be usual, that shouldn't excuse the behavior. – DA01 Sep 13 '14 at 6:04
5

What would one do in a situation like that?

I would find a lawyer. Which should be really easy, given that this is a fairly obvious case of plagiarism. Good luck!

2

As Matt said, hire a copyright lawyer. Or at least have someone with the required legal knowledge have a look at your case and advice you on the matter.

2

Although you may feel this is blatant plagiarism, there are a few things you should consider before pursuing this in any legal setting.

How similar is the design to yours, as-in, is it unmistakably similar or identical to a non-bias 3rd party? Is there a possibility your design could be considered generic enough to not be copyrightable in a legal sense? What is the likelihood this company brought in a 3rd party designer and instructed them to design something with ink and pen, of which a new and unique piece would have been created without infringement. Did you leave them with samples of your work from-which you might be able to claim they copied (you said it was over a year later that this tshirt was introduced). How many sales have they made for this design? 10, 100, 1000? All are small relatively when compared to the dollar amount you will have to front to bring suit. How large is this company? (you can't sue someone for a million dollars if they don't have it).

Any of these scenarios (and more) might render your case sunk. Unfortunately you won't be able to figure some of these out without moving forward.

In the event you do decide to move forward, some general advice:

Lawyers are not cheap (obviously), and they will do whatever you pay them to do -- which is not always what is best to do. A good lawyer might advise you before plotting ahead, however you might easily find a lawyer who will sue for something that is blatantly not a case -- effectively eating up your money for nothing.

If you do not already have a preferred lawyer, your local BAR should be able to make some recommendations. Most have a referral program where for a small fee, they will provide recommendations to cheap or free consultations. You do not need to take the first recommendation! You can have several until you find a lawyer that you feel conformable with. Although not required, I would advise to find one with some previous domain-relevant experience.

There will be a discovery period in which both parties get to request and examine evidence from which they will build a case. They will get to see everything you have on them, and you the same. Unfortunately at this point, you have already filed the claim and if you uncover you do not have a strong case, it may be difficult to back out without taking some loss.

If your claim is under $10,000, then it is likely headed to Small Claims court, instead of Civil court. Civil court may take months to get a court date, whereas small claims court you generally will get a date in a few weeks up to a month. You have the option to file in either (but not both), but know that both carry the same weight in handing down judgement. In both, you are responsible for collection of any winnings rewarded to you, basically all you win is the legal right to attempt collection. So even if you do win, there is no guarantee that you will ever actually see your payment, and worse, you may spend a lot attempting to collect.

Also know that most of these things get settled out of court (to keep official things off the books). This may mean you end up taking 1/2 of what your initial claim was (so start high to give wiggle room - it leaves room for negotiation, and give the judge room to compromise without sinking your case and pocketbooks). If you move forward, your lawyer will likely start off with a threatening letter, and step it up from there. Sometimes even this initial letter is enough to bring a settlement (nobody likes getting angry lawyer letters certified mail first thing in the morning).

So, my recommendation, if you feel very strongly about this, and knowing full well you will burn whatever bridge might be left between you and this company, is to start off with a cheap or free consultation. See what the lawyer says -- go home, and maybe try to get another consultation if possible (guard yourself against hearing only what you want to hear). If both professional opinions make a strong enough case to move forward, and financially it makes sense, go for it.

~

Disclaimer: I'm not a lawyer. I've had my fair bouts, but by no means should my advice be used as the sole basis for any action. Seek counsel if you feel strongly about your situation.

  • Just as a note: I think your claim does not necessarily have to equal the share of t-shirt sales that your design contributed to; you could be compensated above and beyond the real value of your design for various reasons. One example being, loss of future earnings due to the design already being in the public domain and associated with a specific brand/object/philosophy etc. – Dom Sep 13 '14 at 19:23
  • In my experience lawyers are much cheaper than people think. Just not definitely, free. – joojaa Sep 14 '14 at 20:53
  • @joojaa I'd say you will probably average around $200-$400 per hour, depending. Where it gets you usually is the smaller things, such as making copies ($65 for example, etc). – SnakeDoc Sep 15 '14 at 14:47
  • cost is heavily dependent on where you are located. Allmost certainly in my locale they will never charge in dollars ;) – joojaa Sep 15 '14 at 16:46

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