copyright ownership of artwork

[PancakeMail]

:help:
okay, quick but important question:

When I post a contest, and a designer posts a submission and ultimately wins the contest, do I then own (or more technically, have I bought) the copyright to the artwork included in the winning submission?

If after the winning submission is chosen, if changes need to be made, do I own the copyright to the modified artwork?

I have discussed these questions with an intellectual property attorney, who advises me that yes, the contest holder would own the copyright of the winning work, calling it "work made for hire". I ask these questions here for two reasons: 1. the agreements/rules of this website may specify otherwise and I simply have failed to see that, and 2. I think it always helps to be sure I know the answer to a question rather than to guess or hope that I do.

Thanks!

[Palmer]

We don't have any specific guidelines set forth on the site because the designers are independent contractors.

You have purchased the artwork from the designer but the designer owns the copyright but will most likely transfer it over to you as long as they can feature it as one of their creations in their portfolio.

[ElKootcho]

A "work-for-hire" only exists if a contract to that effect is signed in advance of any work beginning. Once the design is created, the designer can transfer the copyright to you upon request. There are forms for this and they can be filled out and faxed or mailed.

Good article here. (http://copylaw.com/new_articles/wfh.html)

[ElKootcho]

Although I don't foresee any problems with a designer signing the copyright transfer agreement, I'd highly suggest that any contest holder who want the copyright signed over should state that requirement at the beginning of a contest. Once the contest is over, there is nothing that requires a design to sign it over.

[hotnuts21]

That is very suprising to me, especially as all my clients require they own the copyright. I thought that was part of the DO rules.

Hmm I think that should be made more clear somewhere Palmer in the Rules as I think it 'might' lead to problems.

[cre8or]

With a work for hire, the hiring party steps into the shoes of the creator and becomes the author of the work for copyright purposes. With a work for hire, all of the attributes of copyright ownership -- including credit and control -- vest in the hiring party, not the creator.



This is a quote from the article you posted Kootch.
What alot of people don't understand is that work for hire means, the designer is an Employee. All the resposibilities an Employer has towards an Employee are expected to be met. For example: Benefits are to be paid, insurance is to be paid, all applicable taxes are to be paid, the employee has the right to fair working conditions, etc... there's quite a list of items that go along with work for hire. In addition to the cost of the work itself. What alot of people like to do is neglect all these responsibilities, and work in a freelance situation, then when the issue of copyright comes up, they say, oh, it was "Work for Hire", and they say this for the sole purpose of obtaining copyright.

As far as I'm concerned, straight Graphic Design, I'll freely hand over the ownership. I mean, where would I be able to re-use a company's branding image? But in illustration, I'll discuss ownership and licensing before commencement.

In short, it may protect everyone if intentions are stated up front.
Work-for-Hire agreements must be stated upfront. In the case of Playboy VS Dumas, the artist's widow was taken to court for tryng to sell some of her late husband's artwork, that Playboy has said was work for hire. No work for hire arrangement had been made prior to the creation of the artwork -- instead on the back of the checks her husband endorsed was "Work-fo-Hire" language. It was let stand by the US Supreme Court, the Second Circuit Court of Appeals unequivocally rejected declaration of a work for hire agreement after the contract was fulfilled.

Note for Designers: If you are presented with a cheque with any sort of contract language on the back, you may protect yourself by crossing it our and wrinting in it's place: "Deposited without Preconditions".

Just my 2-cents. Nothing to get worked up about. :)

[designmarket]

I think we had a thread about this somewhere else as well.

As for me, I keep forgetting to specify that copyright ownership is to belong to the client (or to me in re-seller to do with what I will) in my comps :blink:

The legal aspect is that copyright defaults to the author is they are not an "employee" in-house etc.

Who owns the copyright to a letter? The author, not the receiver.
In the case of works made for hire, who owns the work? Generally, the employer, not the employee, unless there is a written agreement to the contrary that is signed by both the employer and employee. But in 1988, in Easter Sea/ Society v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987), the US Court of Appeals for the Fifth Circuit ruled that free lancers are not employees under copyright law and that they lose copyright ownership only if they create a commissioned work and sign a work-for-hire contract,
  It you freelance, beware of the phrase, "work made for hire."

[Palmer]

<!--QuoteBegin-hotnuts21+Dec 5 2003, 07:44 AM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (hotnuts21 @ Dec 5 2003, 07:44 AM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> That is very suprising to me, especially as all my clients require they own the copyright. I thought that was part of the DO rules.

Hmm I think that should be made more clear somewhere Palmer in the Rules as I think it 'might' lead to problems. [/b][/quote]
I agree, it's something we've always needed. Do you want to write something up and I'll put it on the site?

[designmarket]

{side note to PancakeMail - I LOVE the pancake postcards.. those hot chicks are just the perfect something I needed to say to someone}

[imageconstrux]

I'm with Kootch - I think everyone here is a reasonable person, and it behooves the contest holder to state up front what the expectations/terms are for the contest.

At the same time, for a consumer-friendly environment, it would seem to make sense to include some of this information in the 'post a contest' page, so that contest holders aren't left holding the bag later. I think that among the contest holders there is also probably an expectation that since the site and it's management has rules for conduct with designers, and to a degree with contest holders, that they bear a good share of the responsibility in this issue, both for educating parties, and setting some firm rules as to who owns what after every contest, so that people like me, who are unable to quote artistic copyright law because we don't deal with that very often, aren't left with little after conducting a contest.

Then again, there's the issue of enforcement. If a contest holder were to infringe on whatever copyright arrangement there may have been, the designer would have to: 1) Find out about it, 2) Hire a lawyer to do something about it, and 3) Hope the contest holder's pockets weren't deeper than yours, to tie up the legal process for many dollars and months (or years), making the whole process fruitless anyway. And all for what - a couple hundred bucks.

I think cooler heads would prevail, and as I said, I think we're all reasonable people.

[designmarket]

Are you calling me a "hot head" :lol:

[Palmer]

<!--QuoteBegin-imageconstrux+Dec 5 2003, 10:25 AM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 5 2003, 10:25 AM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> At the same time, for a consumer-friendly environment, it would seem to make sense to include some of this information in the 'post a contest' page, so that contest holders aren't left holding the bag later. I think that among the contest holders there is also probably an expectation that since the site and it's management has rules for conduct with designers, and to a degree with contest holders, that they bear a good share of the responsibility in this issue, both for educating parties, and setting some firm rules as to who owns what after every contest, so that people like me, who are unable to quote artistic copyright law because we don't deal with that very often, aren't left with little after conducting a contest. [/b][/quote]
Not quite sure what you mean by being "left with very little" after the contest since the designers hand over all the files requested. It's not like they hold everything hostage.

With help from Paul (hopefully) we'll get some form of legal declaration of ownership and copyright transfer posted on the site so it is perfectly clear to all parties involved. It has always been our policy (and this is why we do not have anything on the site regarding this) that the freelancers are independent contractors and have their own individual rules and regulations with dealing with the ownership of their creations. They are not employees of Design Outpost.

I do believe we need to have a blanket agreement amongst the members of the Design Team regarding the rights to their artwork and we'll get that together shortly.

[imageconstrux]

Palmer, I think that no matter what the general consensus among designers is as to who owns what, coming from a lay person who places money down at DO, the expectation is that I am giving money in exchange for a product that is mine, that I can use as I see fit. Absent something to the contrary, I think that would be how this would be interpreted elsewhere. Absent a legal interpretation, we fall back to the question of whether a designer can effectively enforce whatever copyrights they have.

When I said 'leaving with little', I was referring to a possible situation where a designer would expect to exert control over the use of a winning design submitted to a contest. I can't imagine anyone doing this here, but if 'every designer has their own rules', I have to then operate beginning from the lowest common denominator.

All that said, again I say that the people here are friendly, smart, creative, reasonable people, and rules like this, while necessary, are designed to snap into line that very small group of people who are unreasonable.

[Palmer]

Ok, thanks for the clarification Jeff.

[PancakeMail]

Okay, I apologize that in my first post on this issue, I had misremembered what the attorney had told me. I just got off the phone with him and he clarified for me what "work for hire" is -- and specifically, that it requires an understanding to that effect before the work has begun. :oops:

We (the 3 of us at PancakeMail) agree with the previous post(s) that as contest holders, we should take responsibility for the contests we hold. However, the thought of copyright ownership did not occur to us until yesterday, and has raised some significant concerns for us that affect our two completed contests and our one pending one.

For example, even though two of our contests are over, the money has been paid to the winning designers, and we have received the files of the finished artwork, without copyright ownership (or assignment, or whatever the legal term is), it's conceivably possible that in the future, a designer could come back and claim copyright infringement against us, particularly if we become a successful company. While we do not want to imply or hint that the designers are of that character (as we clearly feel that they are not), the complications of not being clear on this issue can be seen from this example. :bang:

So even though each designer is an independant contractor, it might be helpful if on the web form used to submit a contest, the contest holder is reminded to expressly indicate any requirements regarding the copyright of the submissions. The responsibility of addressing the copyright issue would remain with the contest holder, and the designers can decide whether these terms are acceptable when deciding on whether or not to compete.


(that's our two cents, too) :yawn:

[ElKootcho]

<!--QuoteBegin-imageconstrux+Dec 5 2003, 10:15 AM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 5 2003, 10:15 AM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> Palmer, I think that no matter what the general consensus among designers is as to who owns what, coming from a lay person who places money down at DO, the expectation is that I am giving money in exchange for a product that is mine, that I can use as I see fit. [/b][/quote]
I think we can all agree that what most people would expect and what the law says can be two completely seperate things.

Absent a legal interpretation, we fall back to the question of whether a designer can effectively enforce whatever copyrights they have.


Yes they can. If a contest holder had a contest for a "logo for my web site" and then down the road become a huge successful company and that logo lands on buildings, advertising, buses, clothing etc, etc, the designer could potentially sue for a piece of that pie. After all, the payment was for a "web logo", not all of the rest. It could be argued that the fee for the art creation would have been significantly higher if it was known the art would be used in all those other ways. We'd all like to think that we're dealing with reasonable, honest people but that's not always the case.

It's always wise to protect yourself and get it in writing.

That's one reason that graphic designer services can be rather pricey. It all comes down to value. A logo for Nike that is on shoes, t-shirts, boxes, tv spots, etc. is more valuable than a logo that's on a one-man operations web page and business card.

Some people think they can loan money to family members without anything in writing, but hey, we've all seen Judge Judy right? :rolleyes:

[beatz]

Not that's a big issue really (for me anyway) - but when it comes to copyright one factor also is where both the client and designer live.For instance, german laws don't allow copyrights to be sold.You can sell all sorts of rights there but copyright is a non-sellable thing.You create something - the copyright will be yours forever.Much different from US laws.But that's the theory only of course as in real every day life it's not an issue - you sell a design, give "all rights" to the client and that's it.

[hotnuts21]

coming from a lay person who places money down at DO, the expectation is that I am giving money in exchange for a product that is mine, that I can use as I see fit

I think this is probably the expectation that most contest holders here have, including me. I did think that the copyright and all was assigned to the design when handed over. I was actually told by a legal rep to avoid using DO for exactly the reason, that I would not own the copyright! I argued the point and now im wrong so im gonna have to apologise DOH.



Then the designers know from the start, which is fair to all.

I will give you a hand writing something up Palmer, next thing is deciding where to put it.
Maybe a pop up on the New topic page? As well as on the guidelines page!

[Palmer]

I'll put it all over the place that potential and present contest holders can see it. The thing that is starting to worry me is an induced panic amongst all the previous and current clients of Design Outpost.

Please do not worry. This is all simply a means of putting everything in black and white. If there is any concern over the rights to your logo, please contact the winning designer to discuss the matter.

20 years down the road when Happy Tails Pet Sitting is a multi-national corporate behemoth with franchises in ever major city, the designer who made your logo is not going to track you down for a piece of the pie. At least I hope they wouldn't <_<

[ElKootcho]

<!--QuoteBegin-Palmer+Dec 5 2003, 12:16 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (Palmer @ Dec 5 2003, 12:16 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> The thing that is starting to worry me is an induced panic amongst all the previous and current clients of Design Outpost. [/b][/quote]
No reason to panic. It's basically red tape. If you're worried about it, contect the designer. No biggie.

the designer who made your logo is not going to track you down for a piece of the pie

I only want a piece of the pie if it's Banana Cream! Yum! :chef:

[Michael]

I had a dig around, now this is a UK site but I'm sure it will apply worldwide, below is a link scan down to the heading 'OWNERSHIP'


Link (http://www.intellectual-property.gov.uk/std/faq/copyright/more_faqs.htm)

[imageconstrux]

Kootch, I have great respect for you as a designer, but I do disagree with the statement that had the designer known the company would be hugely successful, they would have charged more.

Unless I am misunderstanding something, as a contest holder I am defining what the spoils for the design are. As a designer, you choose to enter or not. You hold no negotiating power for the price of the design; your only option is to submit a design or not. I would think that the cache of having a logo on a multinational company in your portfolio would be benefit enough. But with the death of a few family members recently, I realize that it is true that nobody works so hard as when they have the chance to get money they didn't earn. Not saying that is going to happen here, just that I've seen it, and it's an ugly human trait.

And as far as enforcement Kootch, I'm not talking about what the law says can happen or what an attorney says you can do. I'm talking about the brass tax of finding a good copyright attorney, paying him or her the $150/hr or more that they will charge, plus expenses, me dragging my feet, asking for extension after extension, forcing your legal bills to skyrocket while not getting any closer to an endgame. What is possible by law, and what is practical are also two very different things.

So, having said all of that, I will state right here and now that I plan for every business I have started that has had a design created here, I plan for that business to be wildly successful. As such, I have to assume that there will be one or more winning designers who will try to make the same assertion you claim, again working from the lowest common denominator.

So I may begin squirreling away money to defend against such a thing. I don't know how many of you have engaged in a court battle; they can be very long, very frustrating, and they almost never result in either party being happy. Hard to comprehend how frustrating they can be without living it.

Here's something on the flip side of the coin for designers to consider: If I get a cease and desist letter from an attorney of a company that claims my logo design infringes on another previously existing logo design, you can bet I will come looking for that designer to share in the hardships of any lawsuit that ensues.

Paul, I like your idea of a pop-up window or something like that, so each contest holder can easily adopt some boilerplate language for their contest, so each doesn't have to spend time learning about copyright law, on top of all the other things a business owner has to do. I think that any future contest I hold will include that all disputes will be handled according to the laws of my state; one more thing to make any disputer's claims harder to litigate.

Palmer, I can understand your concern about spreading panic among designers and contest holders alike - I guess it's a product of the site coming into it's own.

I hate that this thing is beginning to sound adversarial, but since I really like the site and the people here, and since many contest holders do not hang out for much longer than it takes to host their contest, I want to be sure that people like me are well represented in whatever this outcome is. Not to mention, as my website grows in popularity, and as I continue to promote DO to my members, I want to be sure I'm not steering them into a lion's den.

[Palmer]

Well said Jeff. Our goal is to protect both parties in this operation and we will strive to do that.

This humble little operation is growing up. Now we have to have legal stuff. How cool B) Next thing you know we'll have a full-time copyright attorney on staff making sure none of the entries infringe on any trademarks. Good stuff. :tup:

Paul and I will work on a copyright statement over the weekend. You can trust that it will enable you and every client to trust we have their best interest in mind when they choose to do business with us.

[ElKootcho]

Please realize that I am only playing devil's advocate here. Certainly not meant to enrage you. I agree that chances are extremely slim of anything possibly happening (legal-wise) only that it could. And that being the case it's wise to protect yourself if you feel any concern what-so-ever.

Remember, this thread began because someone had a question regarding who owns the copyright and the simple answer is: unless the designer agrees to sign over the copyright, the designer owns it. That's U.S. Copyright law. There's a reason that copyrights can be transferred. It's to protect people and businesses.


I would think that the cache of having a logo on a multinational company in your portfolio would be benefit enough.

I can almost guarantee that for any established designer, that is not benefit enough. But that's besides the point.

as a contest holder I am defining what the spoils for the design are. As a designer, you choose to enter or not. You hold no negotiating power for the price of the design; your only option is to submit a design or not.

That is obviously true but I am speaking in general terms. And the fact is there have been contests that many designers chose not to enter because some didn't feel that the "spoils" were fair. Nobody wants to feel taken advantage of.

My initial comment was only a possible scenario that the law would allow. Nobody drives around expecting to get into a car accident but sometimes "**** happens" so we all carry auto insurance. Be aware. You don't know who's out there.

[Eagle]

<!--QuoteBegin-imageconstrux+Dec 5 2003, 05:31 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 5 2003, 05:31 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->Here's something on the flip side of the coin for designers to consider:&nbsp; If I get a cease and desist letter from an attorney of a company that claims my logo design infringes on another previously existing logo design, you can bet I will come looking for that designer to share in the hardships of any lawsuit that ensues.
[/b][/quote]
In my opinion, it is (ultimately) the client's responsibility to ensure the logo does not conflict with any existing marks...and that they do so before the design is deployed.

It would be absolutely impossible for a designer to check every single logo/mark on the planet and the same would apply for the company. However, the company has responsibilty for choosing and deploying the name...thus, they should also have the responsibility for the mark. A disclaimer from the designer stating that "...the artwork does not knowingly infringe the copyright or property right of another entity..." should be enough from our side.

Whether the law agrees with the above (surely it must?!) is a different matter but I'll bet I could argue it quite safely in court. ;)

:)
*

[ElKootcho]

See what you started Pancake? "Quick" question. HA! :bang:

[Palmer]

I *think* since this is a U.S. based company and is hosted on a server in California, we would fall under U.S. copyright laws. Can anyone confirm this or doesn't it matter because it's accessible to the world?

[Eagle]

*
IIRC, copyright law is pretty much standard throughout the world...

...as for 'legalese'??? :blink:

[Michael]

"From small acorns tall trees grow"

[imageconstrux]

I'm not enraged - not by a long shot. However, I do have both my interests, and the interests of the members of my forum to consider. However, I am a bit tweaked by the conversation, as I'm guessing you can tell.

Kootch, while I'd bet that you are correct in your assertion that until someone signs over copyright, that it does not become the assignee's property, I would also bet that by entering a design contest, 9/10 if not all of the 'assigning' has already been done. Should I expect a letter from your attorney when I start franchising Stonehenge landscape ops?

Eagle, someone can sue you for wearing your hat funny. Whether or not they win is another matter. We're talking hypotheticals here, and I'm giving you one where the contest holder is on the offensive (a 'let's see how you like it' kind of thing). Judging from your response, I'd say not so much.

On a side note, isn't part of what DO is about is giving 'non-established' designers a chance to prove their mettle and earn some coin in the process? If they were established designers, as I would interpret that, they wouldn't enter a contest until the prize money was up to $5K. This is not to say that there aren't loads of talented designers here. Quite the contrary (otherwise, why would I be coming back time after time?). But I think that the designers for the most part are entering contests where they have a good idea for a design, it fits their timetable, and the compensation is fair for the work they are going to do. Whether the logo becomes something seen on every kitchen table in America/Canada/Europe/etc has to do with the products or services, and the gumption of the people pushing that company.

And hey - here's some interesting info about that Nike logo Kootch referred to.... The swoosh logo is a graphic design created by Caroline Davidson in 1971. Caroline Davidson was a student at Portland State University interested in advertising when she met Phil Knight who was teaching accounting classes at the university.

Caroline began doing freelance work for Phil's company. Phil asked Caroline to design a logo that could be placed on the side of a shoe. She handed him the swoosh and he handed her $35. In the spring of 1972, the first shoe with the Nike swoosh was introduced.

[imageconstrux]

Palmer, I believe that if you stipulate to all new registrants (or existing ones) in your terms, that all disputes will be handled according to the laws of the state of Ohio, then that's where the laws will be interpreted. At least that's what my attorney tells me. ;)

[Eagle]

*
<!--QuoteBegin-imageconstrux+Dec 5 2003, 07:02 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 5 2003, 07:02 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->...the laws of the state of Ohio...[/b][/quote]
Can I see a copy of them?!!! :blink: :o :)
*

[ElKootcho]

Should I expect a letter from your attorney when I start franchising Stonehenge landscape ops?

Better watch out! :devil:

Of course I wouldn't do that (Print that out and save it. You can bring it to court :-p). We were talking (and still are, I think) as you said about hypotheticals. And my point was exactly that. Simply a reason why it would benefit the contest holder to ask for a copyright transfer when they begin the contest. Like you said, you have your business to look out for. Trust me, I'm all for signing over the copyright.

And hey - here's some interesting info about that Nike logo Kootch referred to.... The swoosh logo is a graphic design created by Caroline Davidson in 1971. Caroline Davidson was a student at Portland State University interested in advertising when she met Phil Knight who was teaching accounting classes at the university.

Caroline began doing freelance work for Phil's company. Phil asked Caroline to design a logo that could be placed on the side of a shoe. She handed him the swoosh and he handed her $35. In the spring of 1972, the first shoe with the Nike swoosh was introduced.

I'll bet Nike holds the copyright.

[ElKootcho]

actually I'm not sure what the arguements about. :blink: We're on the same side on this thing.

[designmarket]

I am sure we are all on the same side here - successful results for the designers and the contest holders - without problems, but it is an issue that is good to discuss and learn about.

It is true that the average small business owner is totally unaware that copyright defaults to the author/creator... I have seen some very very painful experiences with some of my clients that have had work done by "designers" that retain the copyright...

One case the work produced was very beautiful - branding - logo - business cards and website all done.

However the website was disfunctional in a few areas and they wanted me to correct it. I tried communicating what was needed to the designer, tried to work with them, explained I didn't want to change the cosmetics & asthetics etc etc.. but nope, they didn't want to co-operate and pulled copyright over it.

The client lost everything - many thousands of $ of investment and I had to re-create the lot from scratch.

I did a good job, but what a waste of time, money and creative work energy it was. The client had grounds to pursue the case legally as there was some things in the contract the designer did not live up to.. but frankly was far too upset to do it and just had to write off the experience.

I see this type of thing all too often, I ask the potential client who owns copyright over logos, design elements & photography and they never know, nor did it occur to them to find out.

Educating business owners is a good thing for DO to do :tup:

[imageconstrux]

I still don't know why this is an arguement - sure, my interest is piqued, and I have more at stake in this than just my own designs, but I'm not angry or arguing. I still believe the people here are reasonable people.

Mike, I got your note. Thanks. :) I sent a response - I hope that explains things a little better.

I'm sure that once a clear set of terms is created, all of this will go away.

[ElKootcho]

I do understand where you are coming from but I hope you understand that I in no way advocate the little "scenario" that I outlined. That was acutally an example of why a copyright transfer should be easily available and the contests holders need to undestand what could happen.

Like I said, I tend to play devil's advocate because often times people post things as if it's a black and white issue which usually it isn't.

[cre8or]

<!--QuoteBegin-imageconstrux+Dec 5 2003, 06:58 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 5 2003, 06:58 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->
And hey - here's some interesting info about that Nike logo Kootch referred to.... The swoosh logo is a graphic design created by Caroline Davidson in 1971. Caroline Davidson was a student at Portland State University interested in advertising when she met Phil Knight who was teaching accounting classes at the university.

Caroline began doing freelance work for Phil's company. Phil asked Caroline to design a logo that could be placed on the side of a shoe. She handed him the swoosh and he handed her $35. In the spring of 1972, the first shoe with the Nike swoosh was introduced. [/b][/quote]
I understand that she received $35.00 for the original SWOOSH and had already met there original contract and that it was sometime later before Caroline Davidson actually started to receive "Royalty" payments. Then it was only because of the honesty and integrity of the Nike developer, that he realised that her logo contributed to the success of the company, he then looked her up and forged a new agreement which was very financially rewarding. I'm under the impression she receives 5 cents every time the Swoosh logo is used thus resulting in her making millions

[imageconstrux]

Thanks Kootch.

Kimber, I'm wondering what you're trying to say in your post. If you've got something to say, please do so.

[designmarket]

I think the point I get from Kimber's post is that Nike where thankful and did something about it.. it is very nice to see that sort of thing these days :)

[cre8or]

Mostly that's it. Thank you, D-M.
Cat's got my tongue now.

And for the record: I'm not arguing.
I think it's in everyone's interest to discuss things up-front.

Peace, Out.
;)

[Palmer]

I don't see it as arguing either. Maybe a few well placed smilies are in order. Sometimes things come across the wrong way on a forum because of a need for emotification :flowers:

[Michael]

So what's the way forward? Just agreeing to the terms with the 'I agree' statement from the designer in my opinion not good enough. I know Palmer and Paul are in discussions over the weekend regarding a copyright statement, is it going to be the case where by the client and designer each print one off, sign it, scan and email or fax to each other?

This way they are no doubts to whom owns copyright and if the contest holder in their 1st post of the contest declares that they require all rights to be transferred over to them for all uses then the designer can decide if they are going to enter or not.

[Palmer]

The first step is posting a statement on the site regarding the copyright of the final artwork, who owns it, and who has the rights to it.

The second step would be to educate the contest holder to post the disclaimer in their message we spoke of.

ie: "By entering this contest you, the disigner, agree to transfer ownership and copyright of the winning entry to company name or person here.

That should cover it on our part and the the winning designer and contest holders may want to follow up with some form of signed release document if they want. We will probably have a standard one available on the site for them to copy and then fax or send in the mail.

[Michael]

Sounds good to me

[Palmer]

Just as an update we are working on an official copyright agreement and ownership statement. We hope to have it posted by Monday or Tuesday.

We will include a "grandfather clause" to keep the previous contest holders from having to track down the designer who won their contest.

[designmarket]

Sounds good Palmer! One thing I thought is in the case of some of the animators & cartoonists/illustrators... sometimes it would be acceptable if they used a character of their prior creation for the purpose of the contest - yet they should retain copyright of the original and provide usage agreement to the user of the character yet handover the exact instance of the application of it as copyright (in that instance) to the contestholder?

If this was the case they would most likely need to say so up front if they had something to offer to the contest that would be using something that could be used in another different situation?

I am very sure I did not word that well.. :rolleyes:

[Michael]

We have discussed the use a of a license agreement for the illustration/cartoon contests.

[designmarket]

:tup: Don't mind me, I'm just a little slow (I am sure we are in good hands on this) :P

[Palmer]

What Michael meant is we will have separate rules governing illustrations and it has been discussed in the private staff forum, it wasn't that you missed any discussion of it in this thread.

All this legal and copyright stuff is making my head spin. I keep recalling a quote by Mark Twain, can anyone think of the one I have in mind?

[designmarket]

Hehehe.. sounds like my own website design contest.. I have it mind, but cannot think it:lol:

[PancakeMail]

I doubt this one, but it seems to fit nonetheless:


"A man who carries a cat by the tail learns something he can learn in no other way." :jester:

[Michael]

<!--QuoteBegin-Palmer+Dec 7 2003, 05:31 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (Palmer @ Dec 7 2003, 05:31 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> What Michael meant is we will have separate rules governing illustrations and it has been discussed in the private staff forum, it wasn't that you missed any discussion of it in this thread.
[/b][/quote]
Sorry DM I was just in the middle of making Jacob his lunch so it was a quick answer.

:)

[Palmer]

<!--QuoteBegin-design-market+Dec 7 2003, 12:43 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (design-market @ Dec 7 2003, 12:43 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> Hehehe.. sounds like my own website design contest.. I have it mind, but cannot think it:lol: [/b][/quote]
No, I think you're thinking of a different one. This one has to do with copyrights.

[designmarket]

And finally comes the shark fishing. The larger the shark, the larger the bounty. You not only get to keep the bounty, but everything in the shark belongs to you.Going to law is losing a cow for the sake of a cat.

[Palmer]

Nope this one...
Only one thing is impossible for God: to find any sense in any copyright law on the planet.
- Mark Twain's Notebook, 1902-1903
Although the second on on the following page (http://www.twainquotes.com/Copyright.html) was pretty funny too :D

[BellaMonkey]

Hi, I have been on this website for a couple of months now following all of the pet designs. I'd like to say that the designers on this website are awesome. I recently started my own dog training business and will most likely be starting a logo contest soon.

I just happened to come across this copyright chat and had never really thought of that before. But since it was brought up, I was just wondering, if a contest holder states up front that they would like copyright ownership, will this turn away a lot of designers?

Also, I checked to see if the new copyright verbage is on the site yet and I guess it isn't. But it is only Tuesday.

Thanks and looking forward to working with some of you soon.

:D

[Michael]

We are just crossing the T's and dotting the I's, it has been discussed to have a layer/law firm to browse over it just to make sure that all parties are covered and it's all in order.

As far as your question regarding 'Will designers be put off' me personally before all this came to light I always thought it was practice at DO to transfer all rights over to the client..I'm sure others will air their views.


We look forward to your contest :tup:


Michael

[ElKootcho]

As far as logo contests are concerned, I see no issue with transfer of copyright. I don't participate in web design or illustration contests so I have no comment on those.

I always thought it was practice at DO to transfer all rights over to the client

I'm sure lots of people think that because they pay money for the work that they own it. It's just an assumption that is incorrect. There is paper work involved and it doesn't happen automatically. For the most part, I think very few people think to ask the question (both designers and contest holders alike).

And of course this is true outside of design outpost. Logos, websites, illustrations, paintings, sculpture, writings, etc (all intellectual property) are copyright of the author unless that person is an employee, a work-for-hire agreement has been signed before work begins, or the copyright is transfered in writing.

[imageconstrux]

As a side note, I believe that electronic signatures have come into their own of late, so I wonder if the awkwardness of having actual signed papers would even be necessary. If it is, you designers better get some fax machines!! :rolleyes:

[Palmer]

I go to Office Max :D

[hotnuts21]

Is there any news on the new policy yet?

If you still want my help just ask! I am interested in the Grandfather clause you mentioned though.

thnx

[Palmer]

I think we are done. It was kind of a work in progress as things were added and edited as the thread progressed.

We need to organize it and that's the last step.

[Trifolic]

<!--QuoteBegin-beatz+Dec 5 2003, 01:25 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (beatz @ Dec 5 2003, 01:25 PM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> Not that's a big issue really (for me anyway) - but when it comes to copyright one factor also is where both the client and designer live.For instance, german laws don't allow copyrights to be sold.You can sell all sorts of rights there but copyright is a non-sellable thing.You create something - the copyright will be yours forever.Much different from US laws.But that's the theory only of course as in real every day life it's not an issue - you sell a design, give "all rights" to the client and that's it. [/b][/quote]
One thing I did find out about copyrights, Is that you can live in ANY country in the world, and have your work US copyrighted. And any violations the violator can actually be extridiated<sp> to the US to be procecuted. I don't remember where I found this, but it was a .gov site.

[Palmer]

How does this look?

http://www.designoutpost.com/copyright.htm

[imageconstrux]

I think it's a very good start.

I have a little input -

#3 - it either seems awkward/unclear, or it's redundant. Is the purpose to prevent DO and DO assignees from getting into trouble over copyright infringement? If so, let's say that. As it stands now, it sounds like you are placing a burden on contest holders/purchasers to do the thing the designers said was impossible - search out every avenue to see if a copyright is being infringed upon. Instead, #2 seems to cover the designers, and already places burden on the contest holder. Just clarify that should an infringment occur, contest holder will hold harmless DO and it's agents for such infringement.

#4 - By entering into this contract the Purchaser fully understands that all design works may not be elegible to obtain official U.S. Copyright status. That ought to be sufficient.

#6 part 2 - I think we need a definition for 'substantially dissimilar'. I'm thinking there has to be a boilerplate test applied to works like this, put into text form, that can be copied and pasted into this agreement.

There were a few typos in there, too. I ran it through Word and found 5, I believe. Closed it before I copied and pasted over here... :tdown:

[designmarket]

I agree that #3 is a bit of a difficulty. I would hesitate signing that.

Hmm..on the illustration - I can just see my lovely lavendar and rose illustrations going out with a copyright notice all over them? and with the possibility of seeing them replicated elsewhere?

Resellers need some separate agreement??

[Eagle]

*
Another t'uppence worth from li'l ol' me... :)

I feel that #3 does need to be included but that currently, the wording is maybe too 'daunting' to the potential client (especially those who have little or no experience in this field). Perhaps it should read...

3. It is accepted that should the Purchaser deploy the Work (or derivative works thereof) in the public domain, they then (as owners of the copyright) assume all responsibility for any infringement of copyright and further agree to indemnify and hold harmless ___________________________(Author), Palmer Barr (Design Outpost Owner) and all of Design Outposts officers.

Yes/No? Maybe? :unsure: :)
*

[Palmer]

Kootch and Kimber are spearheading this task. I will wait for them to offer commentary on the points brought up and then we'll make some changes if needed.

[imageconstrux]

Eagle - #3 as you wrote would never be signed by me, as it appears to take away all liability from the designer, should the designer have knowingly created an infringing design.

I'm happy to hold harmless DO, and #2 already covers the designers to the extent they should be covered in this matter.

One last thing - provide a provision by which either party (either being designer and purchaser) may add terms to the contest, but it must be done prior to the first entry in the contest by said designer (if we wait until the end it opens the chance for a designer or purchaser to add stipulations afterward, which would not be nice).

[Eagle]

<!--QuoteBegin-imageconstrux+Dec 16 2003, 04:01 AM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (imageconstrux @ Dec 16 2003, 04:01 AM)</td></tr><tr><td id='QUOTE'><!--QuoteEBegin--> Eagle - #3 as you wrote would never be signed by me, as it appears to take away all liability from the designer, should the designer have knowingly created an infringing design.
[/b][/quote]
That's where #2 comes in! ;)

Anyway, I'll let this thing run its course. :) B)

[ElKootcho]

I don't think anyone here holds a law degree so the wording can surely use a bit of polishing. Here's the way I see it:

#2 - The designer is basically saying "I didn't copy any current designs but something similar may exist is the world. If so, I am unaware of it's existance."

#3 - The purchaser is basically saying "I understand that the designer didn't knowingly copy any existing designs but if some difficulty should arise I'll not cast any blame upon the designer or DO."

I really don't see much of a way around this. If someone were to go to a design firm and spend $3000 on a logo then I could understand the expectation of a copyright search to ensure that there are no possible infringements. You pay a firm $XXX and you have them perform the search. But given the prices and format of DesignOutpost I think we all can agree that such a service here is impossible.

If someone has an idea of another way to address this then toss it in the ring.

#6 - I think we need a definition for 'substantially dissimilar'

That seems equally impossible. It'd be like trying to define "good design" or "delicious food" or "too rich and too thin" :D . It's obviously a incredibly subjective thing.

[Raja]

Good points, ElKootcho.

[ElKootcho]

Thanks Raja.

Back to #6: Not sure how it should be worded but the basic idea is no different than any other copyright issue. No designs similar enough that are likely to cause confusion between the original and the "derivative" works.

Again, this is a tough issue and if anyone wants to offer suggestions on how to reword this stuff, feel free to post it.

[imageconstrux]

You are correct - I have no law degree. However, and this may just be a wild guess on my part, but I would bet I've spent more time discussing legal issues with attorneys than most of the designers here have. Does that make me more qualified, dunno. Maybe. But my purpose here is to make sure we get a 'fair and balanced' agreement hammered out.

Kootch, I think you may have missed what I was after in #3. The thrust of what I said was, the language is confusing enough as to create confusion between the purpose of #2 and #3. I want to remove that confusion, and I concur with your lay translation of what #2 and #3 should mean.

For #6, I thought there was already some kind of test for that. Like in music, I believe the test is a seven note test. If there are seven consecutive, identical notes (pitch and duration) to an existing song, then it's an infringement. I heard this long, long ago, so don't quote me. But I thought I had heard it come up in a lawsuit where one artist was suing another, yadda yadda...

Even if there isn't a test that can be applied, adding language that defines the term as you just did might be sufficient. No designs similar enough that are likely to cause confusion between the original and the "derivative" works.

[ElKootcho]

But my purpose here is to make sure we get a 'fair and balanced' agreement hammered out.

This is why this is being hammered out in a public forum, not simply "here's the agreement, take it or leave it." How do you think it should be worded?

Anyone - feel free to type something up and post it. Or at least post your thoughts. A lot of people come through here reading this stuff. What do you guys think? It's hard to tweak without input.

[ElKootcho]

For #6, I thought there was already some kind of test for that.

I've yet to find anything concrete. I'll keep looking.

[imageconstrux]

Here is how I'd word #3:

3. Purchaser agrees to indemnify and hold harmless, Palmer Barr (Design Outpost Owner) and all of Design Outposts officers, should a design be determined to infringe upon an existing copyright.

[hotnuts21]

Ive been away from the forum for a while and trying to catch up on all the goss :)

So is the copyright statement finished? And how is it used/utilised? Do we have to ask the designers to download, print and send us a copy or will they do it automatically on winning a contest?

thanks

[Palmer]

Kootch needs to edit the final version with the revisions that were worked out.