Copyright remedy question
Discussion
Scenario: Ad Agency pitches for some work. Included in the pitch are creative concepts. Agency loses the pitch. Agency discovers that the client has used the concepts they provided as part of their failed pitch; obviously so. A clear case of copyright infringement.
Two questions...
Agency is happy to accept financial compensation as remedy to this. Would that compensation relate only to the component of the pitched project that related to the creation of the concepts – or could they claim the total project price? So, for example, if the project price was £50k but £30k went on media space, printing, etc... could the agency only claim £20k. If so, could they also claim the margin they would have otherwise made on the outsourced work had they been awarded the contract?
And when the compensation is paid, does copyright then pass to the client or is that up to the agency to determine?
Thanks in advance!
Two questions...
Agency is happy to accept financial compensation as remedy to this. Would that compensation relate only to the component of the pitched project that related to the creation of the concepts – or could they claim the total project price? So, for example, if the project price was £50k but £30k went on media space, printing, etc... could the agency only claim £20k. If so, could they also claim the margin they would have otherwise made on the outsourced work had they been awarded the contract?
And when the compensation is paid, does copyright then pass to the client or is that up to the agency to determine?
Thanks in advance!
I can't help with the detail, but assignment of copyright is not related to payment of money. It remains with the author unless agreed otherwise.
I recall my agency back in the 80s having a design stolen too - we didn't get get the job but later saw the design on their van! The boss talked about some kind of action but I don't know if/how it was resolved.
I recall my agency back in the 80s having a design stolen too - we didn't get get the job but later saw the design on their van! The boss talked about some kind of action but I don't know if/how it was resolved.
StevieBee said:
Included in the pitch are creative concepts. Agency discovers that the client has used the concepts they provided as part of their failed pitch; obviously so. A clear case of copyright infringement.
Well, maybe. Ideas and concepts are not protected by copyright. However, the detailed expression of those things is protectable. In other words any specific drawings, written materials or whatever.
And then, even if the material is protectable, it's not sufficient to say, "It was in our proposal so it's ours".
The prospective customer can argue,
- "It's not the same as was in the proposal", or
- "It may have been in the proposal but it wasn't original/unique and so has no copyright protection".
Panamax said:
StevieBee said:
Included in the pitch are creative concepts. Agency discovers that the client has used the concepts they provided as part of their failed pitch; obviously so. A clear case of copyright infringement.
Well, maybe. Ideas and concepts are not protected by copyright. However, the detailed expression of those things is protectable. In other words any specific drawings, written materials or whatever.
And then, even if the material is protectable, it's not sufficient to say, "It was in our proposal so it's ours".
The prospective customer can argue,
- "It's not the same as was in the proposal", or
- "It may have been in the proposal but it wasn't original/unique and so has no copyright protection".
In the scenario I describe, the concept designs would have been created in response to the tender brief that requested ideas be submitted as part of the proposal process. So in this case, the designs would be unique as they have been created for this specific purpose.
All design is influenced by other design but in the case here, we're looking at a design concept (as an example) that features a gradated blue background with a red circle in the middle using Helvetica. The client could use Arial and change the words that are included but the fundamental design concept is the same.... Is that correct?
Simpo Two said:
I can't help with the detail, but assignment of copyright is not related to payment of money. It remains with the author unless agreed otherwise.
I recall my agency back in the 80s having a design stolen too - we didn't get get the job but later saw the design on their van! The boss talked about some kind of action but I don't know if/how it was resolved.
Yeah - that's right Simpo.I recall my agency back in the 80s having a design stolen too - we didn't get get the job but later saw the design on their van! The boss talked about some kind of action but I don't know if/how it was resolved.
Our standard policy is that all copyright remains ours up to the point at which all fees are paid when copyright is passed to the client in perpetuity.
For point of reference, this hasn't happened to us but we are considering bidding for a project for an organisation that has form in this regards and I'm looking re-word our copyright policy to afford a little more protection.
StevieBee said:
For point of reference, this hasn't happened to us but we are considering bidding for a project for an organisation that has form in this regards and I'm looking re-word our copyright policy to afford a little more protection.
Maybe find a more reputable client instead. If these guys play silly buggers will you really want to gamble large amounts of money on lawyers and a year or more of aggro?Simpo Two said:
StevieBee said:
For point of reference, this hasn't happened to us but we are considering bidding for a project for an organisation that has form in this regards and I'm looking re-word our copyright policy to afford a little more protection.
Maybe find a more reputable client instead. If these guys play silly buggers will you really want to gamble large amounts of money on lawyers and a year or more of aggro?StevieBee said:
The client could use Arial and change the words that are included but the fundamental design concept is the same.... Is that correct?
The test for "infringement" is whether all or a substantial part of the copyrighted work has been copied.To get guidance on your particular problem you'd need to instruct an expert trademark agent. That guidance could well end up as "maybe" in which case you're off to court to find out what a judge thinks about it. See Simpo's comment above.
Bear in mind that once you start rocking the boat all the client has to do, if they think they might be exposed, is change what they are using just enough to make your hill even steeper to climb.
Have you been round for a chat with this client? If you stand in front of a CEO and say "this is what we proposed; this is what you are using; they are the same and we deserve an appropriate fee" it won't cost you anything and you might get somewhere.
Panamax said:
StevieBee said:
The client could use Arial and change the words that are included but the fundamental design concept is the same.... Is that correct?
The test for "infringement" is whether all or a substantial part of the copyrighted work has been copied.To get guidance on your particular problem you'd need to instruct an expert trademark agent. That guidance could well end up as "maybe" in which case you're off to court to find out what a judge thinks about it. See Simpo's comment above.
Bear in mind that once you start rocking the boat all the client has to do, if they think they might be exposed, is change what they are using just enough to make your hill even steeper to climb.
Have you been round for a chat with this client? If you stand in front of a CEO and say "this is what we proposed; this is what you are using; they are the same and we deserve an appropriate fee" it won't cost you anything and you might get somewhere.
I did indeed bring this matter to their attention, in person. They said that there had been a misunderstanding internally rather than a deliberate attempt to do us out of our fees. They apologised and said that they would look favourably upon us on future bids. I've been around the public sector long enough to know that this is an undeliverable promise but not wanting to be a thorn in the side of a client in a small market, we left it at that.
I since discovered that they had done the same to another company.
That was some years back. Most of the people we dealt with have left or retired and seems to be a different organisation. But once bitten and all that...
StevieBee said:
For point of reference, this hasn't happened to us
StevieBee said:
Having gone through the procurement process they decided to do everything in house but used our design concept. It was beyond 'substantially similar'. I'd actually thought we'd inadvertently given them the InDesign files. They'd changed some of the wording on the adverts and that was all. The campaign had run its course by the time we found out.
Seems it has!Panamax said:
TBH that sounds as though you don't have leg to stand on.
You misunderstand.We do not have any current breach of copyright issue.
My query was to help me consider how best to make our copyright policy more robust. I would like to be more implicit in the remedies that would apply in the case of copyright breach.
We are considering bidding for a project from a client that we know to have breached copyright in the past (10 years ago). Although that organisation is substantially different today, I would like to protect ourselves as much as we can.
I am fully conversant with what constitutes copyright and breach of copyright, particularly in my field. But less so on the remedies that are available to us.
Pit Pony said:
How about charging for concept design
Oh, if only! Public Sector! No chance.Pit Pony said:
Pit Pony said:
How about charging for concept design
How about charging for running a team workshop for ideas generation so they pay you for helping them have thier own ideas A tender brief is published setting out what they need from you. Your only contact with them prior to contract award is via clarification questions. Any variance from the tender and you're excluded or scored down.
Oddly, what you describe is what we are occasionally paid to provide for our international clients (also Public Sector) - running workshops and capacity building focused upon teasing out creative ideas from the client group. But never in the UK.
I take it you’re not members of the IPA? If I remember they offer pitch protection. Another group to look up is Agencynomics, they have a large group of agency owners who share advice and experiences so probably worth a try.
Sounds like a legal letter should be winging its way to them, But do you want to take legal action against a client/potential client? Will it exclude you from further work? Is the agro and distraction worth it?
Sounds like a legal letter should be winging its way to them, But do you want to take legal action against a client/potential client? Will it exclude you from further work? Is the agro and distraction worth it?
Thanks Matty
As to taking legal action, it's a good point and no, I'd rather not go that route. Part of my desire to strengthen our policy is that should such a case arise, the matter could be resolved over a chat and cheque.
mattybrown said:
I take it you’re not members of the IPA? If I remember they offer pitch protection. Another group to look up is Agencynomics, they have a large group of agency owners who share advice and experiences so probably worth a try.
Good shout. I'll check both out.mattybrown said:
Sounds like a legal letter should be winging its way to them, But do you want to take legal action against a client/potential client? Will it exclude you from further work? Is the agro and distraction worth it?
As mentioned, we don't have any current issue. That which I referred to was long ago.As to taking legal action, it's a good point and no, I'd rather not go that route. Part of my desire to strengthen our policy is that should such a case arise, the matter could be resolved over a chat and cheque.
StevieBee said:
We do not have any current breach of copyright issue.
My query was to help me consider how best to make our copyright policy more robust. I would like to be more implicit in the remedies that would apply in the case of copyright breach.
We are considering bidding for a project from a client that we know to have breached copyright in the past (10 years ago). Although that organisation is substantially different today, I would like to protect ourselves as much as we can.
I am fully conversant with what constitutes copyright and breach of copyright, particularly in my field. But less so on the remedies that are available to us.
The remedies for infringement of copyright are well known: you can injunct the infringer to stop them from infringing in the future, and you can have compensatory damages (your loss) or an account of profits (what they’ve made) for historic infringements. Plus things like having infringing copies of your work handed over for destruction. My query was to help me consider how best to make our copyright policy more robust. I would like to be more implicit in the remedies that would apply in the case of copyright breach.
We are considering bidding for a project from a client that we know to have breached copyright in the past (10 years ago). Although that organisation is substantially different today, I would like to protect ourselves as much as we can.
I am fully conversant with what constitutes copyright and breach of copyright, particularly in my field. But less so on the remedies that are available to us.
Damages or profits once paid don’t transfer copyright to the infringer.
But it sounds more like what you’re looking to do it tighten your contractual terms of engagement - in other words to try to give yourself a clear position in a contract you can point to, which means not having to get into mysterious copyright law stuff, right? If so, you’re better off just versing yourself in what remedies copyright gives you.
Copyright law works pretty well though. I’m not sure you’ll improve things that much with a contract. What you’d normally use a contract for in these circs is to make clear when copyright in the work you create passes to the client (if at all). But if they are nicking your work without paying you, they will be infringing and a contract can’t really make your position better.
Edited by anonymous-user on Wednesday 1st March 11:56
BlackWidow13 said:
StevieBee said:
We do not have any current breach of copyright issue.
My query was to help me consider how best to make our copyright policy more robust. I would like to be more implicit in the remedies that would apply in the case of copyright breach.
We are considering bidding for a project from a client that we know to have breached copyright in the past (10 years ago). Although that organisation is substantially different today, I would like to protect ourselves as much as we can.
I am fully conversant with what constitutes copyright and breach of copyright, particularly in my field. But less so on the remedies that are available to us.
The remedies for infringement of copyright are well known: you can injunct the infringer to stop them from infringing in the future, and you can have compensatory damages (your loss) or an account of profits (what they’ve made) for historic infringements. Plus things like having infringing copies of your work handed over for destruction. My query was to help me consider how best to make our copyright policy more robust. I would like to be more implicit in the remedies that would apply in the case of copyright breach.
We are considering bidding for a project from a client that we know to have breached copyright in the past (10 years ago). Although that organisation is substantially different today, I would like to protect ourselves as much as we can.
I am fully conversant with what constitutes copyright and breach of copyright, particularly in my field. But less so on the remedies that are available to us.
Damages or profits once paid don’t transfer copyright to the infringer.
But it sounds more like what you’re looking to do it tighten your contractual terms of engagement - in other words to try to give yourself a clear position in a contract you can point to, which means not having to get into mysterious copyright law stuff, right? If so, you’re better off just versing yourself in what remedies copyright gives you.
Copyright law works pretty well though. I’m not sure you’ll improve things that much with a contract. What you’d normally use a contract for in these circs is to make clear that when copyright in the work you create passes to the client (if at all). But if they are nicking your work without paying you, they will be infringing and a contract can’t really make your position better.
BlackWidow13 said:
I’m not sure you’ll improve things that much with a contract.
You can have a good go at it if the contract is suitably and carefully worded.Imagine a client who asks the agency, "What animal would be most appropriate to use on our company logo?"
Agency: "We think a Cheetah would work best and we can design the detailed logo for you."
Client: "Hmmmm, we'll think about it."
Next thing you know the client comes up with their own Cheetah logo and starts using it.
Under a suitably worded terms and conditions the "idea" of using a Cheetah could be protected. For instance, the terms and conditions put in place before the Agency's presentation might say, "Whether or not Client engages Agency to do any detailed work Client will pay Agency a fee of £10,000 if any of Agency's recommendations are subsequently used by Client".
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