Andrew/Ashley Hager - You Decide

Originally Posted by xanaxez

From my understanding from both parties... neither does a contract... so therefor he still isnt entitled to you use it.

Well neither of us are Copyright Lawyers, so really they would be able to provide the best opinion.

You may want to look into "Implied Copyright Laws":
http://www.acumenlawgroup.com/public...ight-licenses/

Consider the following scenario: A small business owner finds a graphic designer on Craigslist to design a logo for his business cards. The graphic designer designs the logo, the business owner pays the graphic designer, and both parties happily go their separate ways. No agreement is ever put into writing. Months later, the business owner launches a national advertising campaign featuring the business card logo created by the graphic designer. Upon seeing the advertising campaign, the graphic designer contacts the business owner, claims that she owns the copyright to the logo, and demands that the business owner pay for a license to use the logo on a national scale. Is the graphic designer’s demand legitimate? If so, what can the business owner do in this situation? More fundamentally, who actually owns the copyright in the logo?

Copyrights Ownership

Generally, copyright ownership in a creative work is vested in the author(s) of the work itself. Thus, in the scenario above, the graphic designer is in fact the author and rightful copyright owner. There is an exception to this rule, however: in the case of a work made for hire, the employer is considered the legal author of work created by his/her employees. There are really only two scenarios in which a work for hire can exist: (1) work created by an independent contractor, and (2) work prepared by an employee within the scope of his employment. For work created by an independent contractor, two important conditions must be met to invoke the work for hire doctrine: (1) the work is commissioned; and (2) there is a written contract memorializing the arrangement as a work made for hire.

So what does this mean for the business owner in our scenario? The graphic designer was not his employee, and there is no written contract, so the doctrine of work for hire does not apply. Is our business owner entirely out of luck? Fortunately for him, the doctrine of implied license may create the contract he failed to obtain.

The Implied License

Each copyright author generally has five exclusive rights: (1) the right to reproduce the copyrighted work; (2) the right to prepare derivative works based upon the work; (3) the right to distribute copies of the work to the public; (4) the right to perform the copyrighted work publicly; and (5) the right to display the copyrighted work publicly. Copyright authors are free to license all or a portion of their rights to third parties. While the ownership of the copyright stays with the author, a licensee may be permitted to distribute copies of the copyright, or use it publicly, etc. In the absence of an actual written agreement between the parties, an implied license to use the copyright may arise based on the conduct of the parties. Ultimately, an implied license provides the licensee (the business owner in our scenario) some nonexclusive rights to use the copyrighted work to the extent that the copyright author would have allowed had the parties initially negotiated and signed an agreement.

Generally, courts create implied nonexclusive licenses where (1) the licensee requests the creation of the work, (2) the licensor makes that particular work and delivers it to the licensee, and (3) the licensor intends that the licensee copy and distribute his work. See I.A.E., Inc. v. Shaver, 74 F.3d 768, 772 (7th Cir. 1996). In our initial scenario, the graphic designer owns the copyright to the logo. However, the conduct of the parties clearly demonstrates that the logo was created for use by the business owner. As such, an implied license may be created based on what the parties would have agreed to had there been a written contract. Nonetheless, courts analyzing the same scenario would still consider to what extent and for what purposes the graphic designer created the logo in the first place. Is its use in a national campaign advertisement outside the scope of the implied license, which may have been limited to use on a business card? Is it reasonable to assume that the business owner can use the logo so long as it is used for the purpose of his business? While the implied license may be an effective gap-filler in the absence of a written agreement, it does not absolve our business owner from liability for unfettered use of the logo.

The best way to avoid such ambiguity is, of course, to negotiate the terms of the agreement and put everything into writing: who owns the logo, what the business owner can do with the logo, what rights, if any, does the graphic designer have in the logo after the business owner pays, etc . If you are interested in learning more about implied licenses or have a copyright dispute, please feel free to contact us to speak with one of our attorneys at Acumen Law Group.

Thank you all for your input the whole point for any of the threads I posts is to show that Andrew and Ashley knowingly didn't say that I couldnt use said logo for my business I mean its on my business card. Then because of a fall out on a botched website all this comes up I have been using the signature banners and business card for about 8 months. Never has this come up and I also didnt change the logo to make my website logo other than the text saying Tim Johnson, my email and my numbers it is exactly as my business card so I didnt change it. As far as that is concerned I think that I am in the realm of reason as long as I dont change the way th Pied logo looks.

If you didn't sign a contract, did you get anything else in writing? Maybe a proposal, an agreement, even a receipt as to what the payment was for?

Yes Kathy I do have a receipt for the work but in bad judgement(keep in mind they are thought to be friends) I thanked them for getting me files for my card printer on that receipt

Best of luck on this Tim. He was supposed to help me on my site... but we never got that far. I ended up getting some help from someone else.... From the sounds of it... its a good thing I did.

Forcing a client to pay for usage of a logo each time they need it is bad business. A quality, legit design firm will not do that. I have been working in the graphic and web field for five years...No company I have worked for (including AT&T) has ever operated in that manner (nor do I run my own business in that way). They are misusing copyright law. It was never intended to be in reference to commissioned work.

Any legit company will provide a detailed proposal and contract before a project commences. Do not be fooled by cheap prices. In the end, you get what you pay for. Protect yourself. Do your research! Ask questions!

In reference to logo design in particular...Make sure you are getting original vector logo files (AI or EPS) from whomever you use. A vector logo will scale to any size, a rasterized logo will not without loss of quality. A rasterized logo is useless for most people because they won't be able to enlarge it for show banners, business cards, billboards, etc.

In reference to website design (in particular programming), make sure they plan to program your website correctly. Tables are not the correct way to program a website! Make sure the site validates. Make sure it works in IE6, IE7, IE8 and FF3. Make sure it works effectively in screen resolutions from 1024w to 1680w. Test, test, test!

Sorry for my rant, but I hate seeing fly by night "design firms" that rip people off and/or provide a subpar end product.

Ok, where to start with this.

We have not replied to this thread or the one located on FaunaClassifieds, as we wanted to handle it differently, so we walked away from this mess. It just seems that the more we let this go, the more it is slightly being brought up, and we feel our name is being slandered by this account, so we are finally here to explain exactly what went on between us and Tim. Throughout this post screenshots will be posted to back up these accounts. They are full sized, so they will be provided as links.

In early May, my wife was contacted by our ‘friend’, Patrick Long. He knew both her and I had done graphics work, including business card designs in the past. He had given an attempt at Tim’s business card (which will be posted below this paragraph)… but Tim wanted something ‘classier’. This is where Ashley had come into the scene. Tim explained roughly what he wanted his card to include along with him wanting the design to be based off of what Patrick had made for him, for instance he liked the color and font that Patrick had picked. She designed the main layout of the card and everything, including the snake, that was based off of her Pastel Ball Python in regards to shape. The facial design and expression was used from different drawings Ashley had done in the past, which Tim liked and picked out. Ashley sent scans of the Pied Bp during each design progression in order to ensure that Tim was happy how things were coming along. The Pied was the main discussion focal point between Ashley and Tim as they both felt it was what “made” the card. After near completion of the card, Ashley began bumping into a problem with her software, as she wanted a specific effect to be done to card that she could not figure out how to create using Corel Painter X, so the files were sent over to me, and I was soon introduced to Tim. After the completion of the business card Ashley was paid $100 through PayPal as commissioned work. She was not a “pay to hire” (Unless Tim can provide proper paperwork including payroll papers with Ashley’s Social security number on them).

Patricks original concept-
http://i21.photobucket.com/albums/b2...icksdesign.jpg

Ashleys original artwork done before this business card...
http://i21.photobucket.com/albums/b2...-headscans.jpg

Artwork progression, showing it was nothing more being done, other than a business card.
http://i21.photobucket.com/albums/b2...ginalscan1.jpg
http://i21.photobucket.com/albums/b2...ginalscan2.jpg
http://i21.photobucket.com/albums/b2...ginalscan3.jpg
http://i21.photobucket.com/albums/b2...almostdone.jpg

And the final file to be received, as this is what was paid for-
http://s21.photobucket.com/albums/b2...22/redone2.jpg

Ashleys pay, and only pay. In Tims words "payment for the business cards"... not a thank you for them. There are two others to follow, showing neither her, nor I had received payment from Tim on anything, including a "Logo" Payment.
http://s21.photobucket.com/albums/b2...lstatement.jpg
http://s21.photobucket.com/albums/b2...statement2.jpg
-Mine-
http://i21.photobucket.com/albums/b2...lstatement.jpg

Tim fully understood he was paying Ashley in regards to a business card design, as well as her. This is why Tim had only received the business card file, rather than the entire collection of files, as this is what he paid for, and he was fully fine with this.

Tim had asked me to build him a website, shortly after the card was finished, and I declined for the time being. I had explained to him that I was just making a move from NW Ohio, to Southern Florida, and I had also been working night shift for the time being, so my hands were tied. Tim offered to pay the money up front if I would start working on it soon, and I rejected. I explained to him that I would like to start working on the website when I knew I had the open time, not take money before hand when I didn’t know when things would settle for me. Tim understood and had no problem with it.

During the time I was moving and working I kept in contact with Tim. He had hit me up numerous times for advice on photography equipment, techniques, and random other odds and ends dealing with photography and how to get animals to sit still, etc. I had no problem with it, and gladly helped him out. I again explained the time frame to him on the website, and would not be able to take it in as a job until hopefully later that year when things calmed down, and he accepted, stating he’d like to go with me for the web design as I was offering him a good price. Between friends the price was to be $350. The cost was going to cover my wife’s graphics work and for Tim to gain partial copyright for him to use the logo anywhere outside the business card, as long as the picture was not modified or changed in anyway. I was doing the coding end of the website for free, as a friend. Tim understood, and had no problem with it.

After moving to Florida, I notified Tim that I had time open, and I agreed to take on his website design, as he had not contacted another designer at this time. The website was started on October 12th 2009. A screen shot below shows the file creation date. Tim has been leading people on to believe that I have been working on his site for much longer, and that I have been beating around the bush and not getting it finished.

Screen shot of original creation date-
http://i21.photobucket.com/albums/b2...eationdate.jpg

Now there is mention of different “due dates” that were brought up, that I failed to fulfill. Unfortunately, Tim wanted changes to be done, which caused us to be behind schedule. We were installing and modifying a store for Tim called OsCommerce. Which Tim agreed upon. After a week of editing Tim’s OsCommerce based store and nearly completing it, Tim was no longer interested in a separate store and chooses to go with a simple availability page added to his site. After working on and removing Tim’s OsCommerce based store, and switching to a different route and play catch up the due date could not be met. Tim claimed in his post that he was no longer interested in OsCommerce as customers would have to put their credit card information into a “new breeders website”, but it was explained to him before hand that payment was handled through PayPal checkout, so no credit card information would be exchanging through his hands.

Best screen shot we have showing the files and mod-dates for the shopping cart-
http://i21.photobucket.com/albums/b2...oscommerce.jpg

We began uploading multiple files and Photoshop documents to Tim’s server. These uploads led to Aaron Paulmer being able to duplicate my website design, the banner I had made was one of those files. If you need proof on the following uploads, please look back on Tim’s business card, the Pied ball python had a black shading that lightly rounded and draped upon the edge of the snake, but the watermarks Tim had begun to use didn’t have this shading and were crisp and clean which were the Photoshop files we had uploaded due to the $350 agreement for him to receive partial copyright of the Pied picture along with his entire site.

We came to the point of almost uploading the entire site and being done. We then asked Tim for payment, or at least 50% of it at that time. Tim told us, that at that time he didn’t have money for the payment, and that he would have to check with his wife about things. I explained to him that until we get paid at least half of the asking price that we cannot upload the rest of his site, which is why we put up the “Site under Construction” page. We felt that we just couldn’t hand over our entire product without something to show for it.

A few days later it is impossible for me to reach Tim. He had informed me that he was going to be attending the NARBC show on November 7-8th of 2009, and that he had problems with his phone losing service in some areas. I left him a voice message because I couldn’t reach him. Monday the 9th of that November rolls around and I still cannot reach him. I had two phone numbers to reach him at, his cell phone and house number. So all I could do was continue to try and call and leave messages. I continue to try and reach him by phone until November 12th when my wife woke me up showing me our website design and graphics had been ripped off and that there as a thread made by Tim praising Aaron Paulmer for being such a good “web site builder”, which is what led to the mess afterwards.

During our discussion over the phone to try and handle this, we had both agreed on an apology to my wife for attempting to steal her other variations of this artwork, and pull what he had done, as she felt humiliated after this ordeal. He agreed yet, in his post he claimed he doesn’t understand what the apology was for. While on the phone Tim explained that he wanted full copyright of the photo so there was to be no problems between us, now or later in the future. It was $500 for full copyright. After giving Tim the full copyright price, Tim’s attitude changed and stated over the phone on more than one occasion that he was going to do whatever he wanted with the image, as Tim felt there won’t be a lawyer or firm that would take up this case as it involved “so little money”.

When we confronted Tim about stealing the graphics and the design of the website, he threatened us through a Private Message on a forum. He stated pretty much, that he either gets to keep the website I originally designed and graphics according to his terms and what he wants (There was no median found), or he will slander us for as long as he can. We have a screen shot of this Private Message below.

http://i21.photobucket.com/albums/b2...atemessage.jpg

After attempting a resolution it was obvious that neither party was going to agree upon something. We felt the only thing we could do, would be to go to a lawyer, and by posting our side before such would be considered antagonizing, so that is why we walked away. Here is our reply on the topic, along with various screenshots.

We apologize for the long overdue reply, but we just felt it was in our best interest to hold off.

-Andrew & Ashley

Originally Posted by Southern Wolf

Best of luck on this Tim. He was supposed to help me on my site... but we never got that far. I ended up getting some help from someone else.... From the sounds of it... its a good thing I did.

As I've said Kevin, My phone, a Samsung M520, died on me, so Sprint replaced it. I lost all of my numbers, and I didn't have yours again, didn't have a way to get a hold of you, and I was in the process of going through a large move. I did apologize, and my offer is still on the table to help.

Originally Posted by TripleMoonsExotic

Forcing a client to pay for usage of a logo each time they need it is bad business. A quality, legit design firm will not do that. I have been working in the graphic and web field for five years...No company I have worked for (including AT&T) has ever operated in that manner (nor do I run my own business in that way). They are misusing copyright law. It was never intended to be in reference to commissioned work.

Any legit company will provide a detailed proposal and contract before a project commences. Do not be fooled by cheap prices. In the end, you get what you pay for. Protect yourself. Do your research! Ask questions!

In reference to logo design in particular...Make sure you are getting original vector logo files (AI or EPS) from whomever you use. A vector logo will scale to any size, a rasterized logo will not without loss of quality. A rasterized logo is useless for most people because they won't be able to enlarge it for show banners, business cards, billboards, etc.

In reference to website design (in particular programming), make sure they plan to program your website correctly. Tables are not the correct way to program a website! Make sure the site validates. Make sure it works in IE6, IE7, IE8 and FF3. Make sure it works effectively in screen resolutions from 1024w to 1680w. Test, test, test!

Sorry for my rant, but I hate seeing fly by night "design firms" that rip people off and/or provide a subpar end product.

He commissioned us to do a business card. That's it. No actual logo in particular. That's my wife's artwork. We believed we were helping out a friend... otherwise, we wouldn't have given him such a cheap price. This is the first time I've been burned like this... so live and let live. Friend or not, a contract is in order.

We don't use tables for our layout, but rather, an external .css stylesheet and div tags. Our sites validate, etc. We test them in as many browsers as we can including google chrome, firefox, IE6+, opera, and safari. There's no fly by night anything here...

As for this thread on the BOI... This is our one and only post here on this topic. We do not post here, and do not really frequent this forum, other than to view classifieds. We simply felt a need to get our side out. There is the full story.

When we confronted Tim about stealing the graphics and the design of the website, he threatened us through a Private Message on a forum. He stated pretty much, that he either gets to keep the website I originally designed and graphics according to his terms and what he wants (There was no median found), or he will slander us for as long as he can. We have a screen shot of this Private Message below.

http://i21.photobucket.com/albums/b2...atemessage.jpg

I Agree with Andrew on his whole post. It is as accurate as I could portray myself. Most if not all or our communication was done through text,phone, and instant messenger(which I learn can't be done). The above quote is all I would like to counter on, I said I could continue being a D!ck but it would be better if we worked it out between us. We could not work it out so as a direct result of this thread a web and logo designer contacted me about doing a different snake design since that was what the big part of our parting ways in the first place.

Now After re reading my new logo thread I can see where it could be construed as me bringing up Andrew and Ashley but that was not my intentions. I was very happy with the logo Ashley and Andrew designed. I fought trying to keep it but in the end there was no way so I changed it. I took blame for not informing Aaron I didn't own the RM logo, because I in fact thought I did.

Let me say again I agree with Andrews whole post it is how I would post it if I was as articulate. I never once said a bad word to or about either Ashley or Andrew after this exploded. I didn't see it as me winning or anything. I saw it as "well there goes what I have been building my business on,what should I do now".

Let me say this I was happy with every bit of the work I got from Ashley and Andrew. I think for almost a whole year it was worth the $100 I paid for it. If I had it to do again I would have asked for the price to own everything, but isn't that the saying, Lessons Learned.

Here's That apology for Ashley I am sorry I ever put up that partial drawing of the unfinished logo you were making for me. It was done in bad taste and was uncalled for.

One more post...

This was to get our side of the story out, rather than one persons involvement with the incident. We felt this has hurt our reputation long enough, without our side of the story being told, for people to make their own judgment. This wasn't brought up by Tim's logo post.