Members keithtoxic Posted February 20, 2009 Members Posted February 20, 2009 I'm a graphic designer whose worked for some major people(to name drop, right now I'm doing work with the band hatebreed) Lately I've been smart and making sure everything I do is under contract. But a year ago I did some free work for a band I knew would get big, thinking in turn they'd help me out(I was wrong) Now this band is getting pretty huge(signed to a big record label, constant national touring, cd on billboard top 100) They plaster the logo I did for them on the myspace layout a year ago EVERYWHERE! Tour posters, their cd, their myspace, tshirts, the logo is on everything imaginable that they have. At first I figured, awesome, my work is EVERYWHERE, you can't walk into a hot topic without seeing my logo. So I figured I'd message them to get some real work out of them, seeing as I helped them out before. They absolutely ignore my messages, and don't reply to me. Since I did it for free, and there was no contract, do I have no legal ownership to it, or because it was my work do I own all rights? I still have the original PSD file that I did it on, dated back to february of last year. Should I contact their record label or what?
Members scottish_sd Posted February 20, 2009 Members Posted February 20, 2009 im no lawyer, but i suspect that since you did it for free with no contract that you dont have a case. The key part is that you did it for them and allowed them to use it without any legal documentation stating reimbursement. You may be able to build a case from here on out though, that if they want to keep using it then they need to license it from you. In order for that to happen you would need to copyright the image as a trademark or logo or something, i think. Things like that are rarely made retroactive though so the longer you wait the more you lose. As i said though, if you are serious about this then talk to a copyright or patent attorney. Also, expect the band to just drop the logo and find something else if they dont want to pay for it.
Members pirata Posted February 20, 2009 Members Posted February 20, 2009 I know this sounds obvious but you said messaged them why not phone them if you already haven't? Also doesn't look like you have a case.
Members keithtoxic Posted February 20, 2009 Author Members Posted February 20, 2009 I know this sounds obvious but you said messaged them why not phone them if you already haven't? Also doesn't look like you have a case. Don't have a phone number to get ahold of them. The only person I can get ahold of is their old vocalist, but he got kicked out and doesn't talk to them anymore, so it doesn't really help.
Members HittinTheJug Posted February 20, 2009 Members Posted February 20, 2009 If you created for them, as in you were commissioned or directed by them to do work, it is considered a "work for hire" and you therefore are not the author of the material as the rights for a "work for hire" are owned by the commissioner of the work. In this situation the one creating the work, or the "commissioned," should be paid an agreed upon wage but if there was no contract then it seems you are not technically owed anything.
Members Steve Nixon Posted February 20, 2009 Members Posted February 20, 2009 Hey Keith, I would definitely contact a lawyer if I were you. I can think of a few possible ways you can still get paid. A good lawyer will seem them too.
Members germanicus2112 Posted February 20, 2009 Members Posted February 20, 2009 If you created for them, as in you were commissioned or directed by them to do work, it is considered a "work for hire" and you therefore are not the author of the material as the rights for a "work for hire" are owned by the commissioner of the work. In this situation the one creating the work, or the "commissioned," should be paid an agreed upon wage but if there was no contract then it seems you are not technically owed anything. This is not correct. According to section 101 of Title 17, Work for Hire on a 'commission' basis requires a written instrument specifying that the work is a 'work for hire' or there is an employer/employee relationship (as defined by general common law of agency). The poster should contact a lawyer.
Members FireWithin Posted February 20, 2009 Members Posted February 20, 2009 this is bull{censored}. you aggreed to do it for free. you have no rights now. if you wanted money you should have asked up front. should we start bitching about free shows we've played for up and coming clubs that got bigger? as soon as something becomes big you have all these people coming out of thr woodworks looking for a piece. if you designed a logo what did you think they would use it for?
Members Kramerguy Posted February 20, 2009 Members Posted February 20, 2009 I'd say that the OP does have a legal right, my angle would be that the band does have 'former' member(s?), you can argue that the agreement was with the former member only and that the rest of the band, and it's replacements took liberty with something that didn't belong to them. I guess it's a pretty {censored}ty thing for the band to put you on /ignore, especially if your design is on all their merch at a national level. I'd called that lawyer the minute I saw the art in a retail store.
Members BlueStrat Posted February 20, 2009 Members Posted February 20, 2009 Like most bands just breaking, I'm sure they're loaded to the gills with money. A lawyer would just love to jump on a case like this.
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 keith I'd suggest contacting your state's bar assoc and checking into 'lawyers for the arts' options (most states have some sort of org for that sometimes you'll see them listed as VLA - Volunteer Lawyers for the Arts) or the assoc might be able to steer you to other pro bono or reduced rate options
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 additional : you are in michigan yes? these guys can prob get you pointed in the right direction http://www.artservemichigan.org/
Members Kramerguy Posted February 20, 2009 Members Posted February 20, 2009 Like most bands just breaking, I'm sure they're loaded to the gills with money. A lawyer would just love to jump on a case like this. well if that band is making $$ off merch at hot topic, then the creator should at least get a royalty, IMO. Legally... Morally: absolutely.
Members bluesway Posted February 20, 2009 Members Posted February 20, 2009 talk to a lawyer. it's worth pursuing, but don't hold your breath.
Members Pankot Posted February 20, 2009 Members Posted February 20, 2009 ANAL, so go talk to one. You haven't said how you offered them the logo. Although there was no contract, presumably there was some prior conversation like this: You: Hey, I'd really like to do a logo for you. No charge!Them: Great, go for it!You: Here you are. [attachment: logo.psd] Now the phrasing will be really quite important. In the above example, while you retain copyright on your work, it would be argued that in offering to "do a logo for a band" at no charge you are implicitly granting them a licence to use the logo for any merchandising purpose they see fit. Now contrast with the following: You: Hey, I'd really like to do a logo for you. No charge - but do credit me where you use it.Them: Great, go for it!You: Here you are. [attachment: logo.psd] Or: You: Hey, I'd really like to do a logo for you. No charge up front, if you land a major deal and want to keep using it we can talk royalties then. Them: Great, go for it! You: Here you are. [attachment: logo.psd] In each case the implicit license is different. So get together all the correspondence you had with the band, since the crucial thing is to establish that you didn't offer it to them in a way that implied you were granting an unrestricted licence.
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 I suppose there's the potential for estoppel difficulties here too - so yeah, one more factor to complicate
Members S.L.B. Posted February 20, 2009 Members Posted February 20, 2009 Morally, Why do you want to make money over something you agreed to do for free? You said yourself you were happy when you started to see it everywhere. Why not use it to get other work....plaster the fact that you are the designer of logo x and market yourself to their friends and fans and anyone who may use your services....and be familiar with that existing logo. I'm sure you could make plenty of money this way. Its absurd, who do you think gets paid everytime a Dave Matthews shirt sells, the graphic artist or Dave Matthews. The guy that designed the shirt probably gets paid $20.00/hr and did it about 2 or 3 hours max. I have a friend that works for a popular graphic studio in Nashville and works with big name artists. He's paid hourly, and let me tell you he doesn't get paid everytime a cd sells or a tshirt or whatever. Even IF a lawyer could get you money what are the going to get you? Original cost of design? Which is what a couple hundred bucks? $300-$500 is pretty fair for logo's that get used everyday.
Members S.L.B. Posted February 20, 2009 Members Posted February 20, 2009 People are talking royalties on a logo now? wtf.... did you take the time to copyright it or trademark it....my guess is no. You get royalties on the use of a logo, because it reminds you of who owns it. IE: Nike gets royalties on the use of their swish because it is a brand Identity. (Plus they own the trademark) When you see the swish you don't go, "hot damn, graphic artist x, he's the man!"
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 wtf.... did you take the time to copyright it or trademark it....my guess is no. Quick tech note : copyright is automatic at time of fixation. What people often mean when they say "copyright" is registration of copyright.trademark probably isn't going to apply to our author as he isn't using it in the marketplace to identify his goods/services (but they can be established through use)
Members HittinTheJug Posted February 20, 2009 Members Posted February 20, 2009 This is not correct. According to section 101 of Title 17, Work for Hire on a 'commission' basis requires a written instrument specifying that the work is a 'work for hire' or there is an employer/employee relationship (as defined by general common law of agency).The poster should contact a lawyer. Right. But if there is no contracting stating it is a work for hire and no trademark (assuming it is a logo) or written consent for use on the authors behalf than I am guessing a judge would look at "what was the specific nature of the assignment" which in this case seems most like work for hire. Of course I am not a lawyer so I definitely could be wrong, that is just my own interpretation of the situation. And to everyone talking about royalties on a "moral" basis, that is just not going to happen.
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 And to everyone talking about royalties on a "moral" basis, that is just not going to happen. I do think it's a confusing term to useTthere are "moral rights" in copyright law, but not in the sense that it's being applied in the thread
Members germanicus2112 Posted February 20, 2009 Members Posted February 20, 2009 Right. But if there is no contracting stating it is a work for hire and no trademark (assuming it is a logo) or written consent for use on the authors behalf than I am guessing a judge would look at "what was the specific nature of the assignment" which in this case seems most like work for hire.Of course I am not a lawyer so I definitely could be wrong, that is just my own interpretation of the situation.And to everyone talking about royalties on a "moral" basis, that is just not going to happen. Work for Hire is a very specific statutory construct which requires specific conditions be satisfied. A judge isnt going to just ignore those conditions in their absence and make up new law on the spot. If he did, the judgment wouldnt survive appeal. The circumstances either meet the statutory conditions or not.
Members germanicus2112 Posted February 20, 2009 Members Posted February 20, 2009 I do think it's a confusing term to useTthere are "moral rights" in copyright law, but not in the sense that it's being applied in the thread Moral rights pretty much are crap in the states. US is a signatory to the Berne Convention but we dont really follow moral rights to the degree of many european nations when it comes to copyright. Congress passed VARA to covers visual works in the US.
Members slight-return Posted February 20, 2009 Members Posted February 20, 2009 While the US certainly tends to be way more skewed to the financial than most of the big players. It is an issue that does come up and get ruled on[Milton v Warner and Soderbergh v Cleanflicks are examples - now an interesting point about Soderbergh is that we are seeing somewhat of a doctrinal, as opposed to statutory, extension into the moral rights area] [additional thought : while US copyright law tends to be weaker in this area, if the act is getting big and does decide to release in EU...then there's another fish in the pan too] but I think we may be doing exaxctly what I feared : while there are moral rights, they are very probably not in play here (I suppose someone could try to make some sort of an argument for attribution, but...I think it'd be a longshot at best and there might not even be grounds)and the term "moral rights" as it applies legally is going to get confused with how people are applying 'moral rights' socially in this thread.Which is kind of what I was after...while there is a legal concept of "moral rights", it's something that probably isn't in play here and I think the term is going to lead to confusion
Members germanicus2112 Posted February 20, 2009 Members Posted February 20, 2009 but I think we may be doing exaxctly what I feared : while there are moral rights, they are very probably not in play here (I suppose someone could try to make some sort of an argument for attribution, but...I think it'd be a longshot at best and there might not even be grounds)and the term "moral rights" as it applies legally is going to get confused with how people are applying 'moral rights' socially in this thread I dont believe VARA applies here but the OP should talk to a lawyer in his area.
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