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I have designed emoticons for a company, but they feel that the work is not original! They sent me an email saying "There are many emoticons on the market which all look nearly the same." How can I convince them that my work is original?

It is original work by me! I have also signed a contract with them.

Here is a detailed reply from my client

There are many emoticons on the market, which nearly look all the same. - Did you legally clarified that you are allowed to sell the emoticons to customers? - So you carefully secured yourself, that your emoticons differ from other emoticons? - Do you have an confirmation, that the use is allowed? We want to avoid any problems caused by using your emoticons, because they don't differ from other emoticons on the market. This is very important for us!

Do i have to have a design studio to be legally clarified to sell my work? I'm a freelance graphic designer and i work from home!

Here is preview of emoticons Attachment : http://bit.ly/1XW2nQQ

  • 1
    Be original - make sure they're distinctly styled. – Paul Apr 26 '16 at 15:16
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    "100% original" ... that does not sound possible at all, if I ask the pedant in me; no work is perfectly original. – phresnel Apr 27 '16 at 10:14
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    I see. I realise you've probably spent a long time on these, but they do look a lot like most others. (Sorry - I'm not trying to upset you!). Maybe giving them some extra edge such as a completely different shape or making them squishy or photos of people with the appropriate expression on their face (obviously with consent!). – Paul Apr 27 '16 at 13:03
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    Except for the bottom emoticons the rest look like the regular emoticons. The style in the bottom can make it much more original. Also male and female emoticons(for all smileys) look good. – Acewin Apr 27 '16 at 17:05
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    In my opinion, these emojis wouldn't pass the "Moron in a hurry" test. – IQAndreas Apr 28 '16 at 3:37
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While I generally side with you that original work implies that you performed the work from scratch, I must ask a few questions:


Did the client approach you about this or did you pitch it to the client?

If you are the one that pitched the idea then the client trusted you to truly wow them since they are likely paying a premium for these original emoticons. If they are left with the feeling that they were better off getting something off the web for cheaper and with less time consumed then I can understand their frustration.

What does the client do as a business? Could this be the next WhatsApp?

Maybe they were expecting a truly amazing icon set that they can put their brand behind. If they are just running some forum then they can certainly use some stock off the web and be done with it. If they were banking on an awe-inspiring emoticon set that would differentiate them in their business-space then I can certainly see why paying a premium for "more of the same" (in their eyes) is somewhat of a let-down. On the flip-side, if they didn't pay a premium then it is somewhat rude to expect a 100% stellar product.


I just want to make it clear that I am not critiquing you nor the hours that you've certainly put into your work but these could be valid points to consider during your next contact with the client.


Update

After seeing the full text of the email which your client sent and reading the comments throughout this post, I would like to offer the following reply:

Hello Mr/Mrs/Ms. Client,

I would like to assure you that the work I submitted to you is 100% original in terms of me performing the design process from start to finish. Yes, you are correct that there are many emoticons on the market and at first glance they all look similar. I made sure that the emoticons submitted to you were differentiated.

Any steps that we can take to avoid legal issues are steps which I would like to take with you. As of right now I can offer you all of my original sketches and mock-ups which led to the design of the final product. I would like to also offer a Certificate of Authenticity which guarantees that the work I performed for you is 100% original and will not be resold in any way. Per our contract, your company will own full rights to these emoticons.

Please let me know if your company would like to take any additional steps in securing the emoticon's authenticity.

Many of the statements made above take a lot of assumptions into consideration about your contract and what you are willing to do so definitely modify it to fit your situation.

It sounds like the client hired you so that they can avoid paying royalties for using someone else's emoticons. They also want to avoid the possibility of being sued. If they do get sued then they need to be thoroughly certain that they can stand their ground and did not rip off someone else's established work.

My primary goal was to be as objective as possible and focus on the fact that they are worried about legal issues and this has absolutely nothing to do with being displeased with the design. I like your emoticons by the way :-)

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    Yes but clients who pay 10 € think that thay should be special not understanding that they should be hiring the guys charging 100,000 € deliver. So no matter what clients think they are getting is irrelevant in most cases. But yes one should manage expectations. – joojaa Apr 26 '16 at 18:40
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    @joojaa Yes, hence my "On the flip-side, if they didn't pay a premium then it is somewhat rude to expect a 100% stellar product." statement. – MonkeyZeus Apr 26 '16 at 18:43
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    Yes but i would rate that a low possibility (that they paid a premium price) .A client willing to pay that premium is going to hire somebody they trust. See one quite seldom criticizes the guy who succesfully billed you a 100000 to avoid looking incompetent. – joojaa Apr 26 '16 at 18:47
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    @AmirDe You're welcome, I am glad that you like my answer. Unfortunately I am not an expert in in the design industry so "Certificate of Authenticity" might not be an accurate term. Before emailing the client you should find out what steps you can take as a designer to secure your work's authenticity; maybe there is a certificate, maybe you have to copyright it, maybe you need an affidavit. Make sure that anything you say in your reply is produce-able. – MonkeyZeus Apr 27 '16 at 13:57
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    @corsiKa That's certainly one way of looking at it. I chose to focus on the "legal concerns" since that is the only information which the toy company chose to disclose. If they had 5 different vendors design emoticons for them just so that they can pick the best one and give everyone else the run-around then that is something which would have to be uncovered and Amir De should fully pursue getting paid paid per the contract without putting any further effort into anything. – MonkeyZeus Apr 27 '16 at 20:19
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It seems you and your client use different definitions of the word "original".

You seem to mean it in the sense that you created the emoticons from scratch without copying anyone else. Your client seem to mean it in the sense that they look too much like other emoticons already out there.

Compare this to much of pop-music. Most songs are original in the sense that they were written from scratch without copying, but at the same time most of those are also un-original in the sense that they sound much like similar pop-songs.

I would do the following:

  1. Assume that the client wants something that stands out more from the crowd and start discussing changes with the client. I'd probably try to incorporate the graphic profile of the company in the emoticons.

  2. Just to make sure, ask the client if they're worried about legality issues with the icons and, if so, add a clause to the contract stipulating that you take full responsibility for any copyright concerns regarding the icons.

And ask the client to be clear. What do they mean? Why do they need to be original? Do the emoticons follow what you've stipulated in the contract? Having an active communication with your client is the first step to a successful (and less tiring) job done.

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    A synonym for the latter usage of original would be "unique". – JAB Apr 26 '16 at 16:14
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    @AmirDora I recommend updating your question and adding that email text to the bottom. – MonkeyZeus Apr 26 '16 at 17:09
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    I would like to point out that dealing with "unique" designs is very expensive. I would only ever cosider such things with clients who understand that unique means also a new astethic and that they would need to pay regardless of wether they like them or not. – joojaa Apr 26 '16 at 18:26
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    @AmirDe Certainly not. Did you mean to write your comment on my answer? Anyways, you could live in a cardboard box, posses nothing but a laptop, and steal WiFi from the local StarBucks and you are still entitled to be paid for your work. My answer focuses on understanding expectations before the work starts. Please feel free to comment on my answer if you wish. I am sure that Szandor would appreciate it :-) – MonkeyZeus Apr 26 '16 at 18:26
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    @MonkeyZeus on the other hand, accepting full legal responsibility while being a freelancer might not be very reassuring - what happens if you do get sued? can you realistically afford a lawyer for your client? do you have insurance for such a situation? or are you likely to declare bankruptcy (for your LLC or firm or equivalent) and the client ends up fending for themselves? – user2813274 Apr 26 '16 at 23:52
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Show them your process of creating the emoticons! The sketches you have made, the progress, etc.

  • Not sure this proves anything – Ryan Apr 28 '16 at 12:40
  • It doesn't really prove anything indeed but I think (and my experience is) that the client will have more faith in you and your skills and why you have made the emoticons in the way you have made them. – Wilcovanmeppelen Apr 28 '16 at 12:50
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This is a necessary part of any contract, and you need to have a contract. The contract should say that you have all the rights to any images or other copyrighted work that you supply, and similarly that the client will obtain any necessary rights to any material they supply. The contract also must specify any licensing or transfer of rights, and probably the governing law and jurisdiction. Under certain circumstances, there may also be language indemnifying one party or another from claims resulting from the use of a given work. Technically, all that should be necessary is for you to write, "I warrant that this is my own original work", but you also need to have a document granting them some right to use the work. Ultimately, you are having this issue because you failed to adequately provide for it and failed to act in a professional manner. It is unfortunate that being professional involves a lot of legal documents and lawyers, but the lawyers pay for themselves by preventing exactly these kind of disputes.

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    I have provided my client with a contract and all these terms and conditions and grant of rights are clearly mentioned in the contract. Do you suggest me to provide any additional documents apart from a contract? – Amir De Apr 26 '16 at 21:17
  • If all of that is settled in the contract, refer the client to the contract. If they are still confused, have them talk to their lawyer about it. – canhascodez Apr 27 '16 at 21:13
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There's a lot of confusion here, revolving around the use of "original".

The issue at hand, I believe, is that the customer wants to be sure they have the rights to use the designs without anyone claiming they're a copy of their work, and hence there is copyright (or possibly trademark) infringement.

The fact that you designed the logos from scratch does not necessarily make it original, if they're too close to other designs. If you see a painting, and then make a new painting that looks a lot like the first one, even though you started with a blank canvas, paint and brushes, it can still be a copy.

The same applies here: if your emoticons look to much like others, they may be infringing copyright. Your emoticons need to have something that makes them different enough from the originals, not just be created from scratch.

Note that in many cases, people make copies without even realising it. They have something lurking in the back of their mind which they have seen/heard somewhere, and they end up doing something similar to that.

Now, emoticons are a bit of a special case, as there are many, many emoticons that look a lot alike, even though they were created by different people, so it would probably be difficult for anyone to say "your emoticons are a copy of mine" if they also look like a dozen other similar emoticons. Also, to benefit from copyright protection, they need to be original work, and since many emoticons are just subtle changes on a list of emoticons defined by standards bodies, they may not be protectable/protected at all.

However, if your emoticons have a distinctive design that matches one that already exists, you could be in trouble.

So, options:

  1. Make emoticons that are really different from any others. Make sure you do an exhaustive search for similar designs (e.g. using Google reverse image search). Note that it's difficult to be really exhaustive, but if you make a real effort and document it, that may help.

  2. Make emoticons that look like emoticons that have "open" licences. Note that those may in turn be considered copies of other, "non open" ones, so you would be back to square one.

  3. Just consider that emoticons are not protectable because they're too generic. You probably need to check with an IP lawyer before engaging in this route.

Be very careful of any wording you put in a contract or even in an e-mail. Consult a lawyer before making any statements as to the originality of your work. Consult a good lawyer before making any commitments/guarantees that your work is original or that you would indemnify the customer for any costs related to IP infringement.

NB: I'm not a lawyer. No guarantees, etc.

0

One thing is clear to me; your client is concerned, and wants to be reassured. If it were me, I would:

(1) research using the suggestions posted here, until the answer is clear.
(2) meet with the client about their concerns and resolve them to where they're no longer concerned.

Good customer service will always help you. It's worked out pretty well for Nordstrom. ;)

protected by joojaa Apr 28 '16 at 12:24

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