Sharpe's Opinion
Sunday, 5th Apr, 2009
Stealing Design work then Suing the Original Designer?
Jon Engle has had a number of his designs ripped off by users of a stock icons website, then the website has accused him of stealing his own original designs from them and tried to bill him $18,000. When he refused to pay they threatened to sue, when he wouldn’t be intimidated they started sending letters to his clients suggesting that they may have designs which breach copyright law on their website. The whole thing stinks.
Thankfully, I have a lot of incidental proof. I would never have thought to plan for something like this, but now I wish I had. Beyond timestamps this becomes my word against theirs to a degree. The logos on LogoPond have a date stamp showing when I uploaded them to the site. This is good, especially if the designs were stolen from my showcase. My submission date will always be earlier than theirs. Even if its only by a day, first is first. Kode ( @kodespark) suggested looking at the meta data in my source files. I didn’t know about meta data before today, but there are timestamps on the files as well. All of the meta timestamps pre-date my LogoPond submissions.
What do they have? A bill and a bulldog lawyer. They refuse to give me upload dates for any of the images in question. If they believe they’re in the right, then why would they hide that from me? I have asked time and again for the name of the artist who uploaded the stolen work. I finally received an email which is less than helpful:
“Sir, it is not a question of one artist, but several. It is quite obvious you’ve been using the site as your personal reservoir of stolen works.”
I find that extremely hard to believe. I don’t believe it. I don’t believe that a group of people came together to form a cartel of logo rips. They are skirting the issue and won’t give me a straight answer about anything.
I wish him well. One of my wife’s university tutors had something similar happen to her in her early days as a freelancer and, as Ellie put it, she still hasn’t really got over it.
Comments
I think the time has come now for us to look seriously at the whole idea of copyright.
The original intention behind copyright was to encourage people to share their creative works with Society At Large by offering a short-term monopoly over their distribution in return for a promise that those works would eventually pass into the Public Domain and be able to be shared freely by everyone. At the time, this was seen as, if not the best solution, then the least unfair compromise: better for the Public Domain to be enriched eventually than not at all. Copyright enabled authors to be sure that the publishers of their works — who had access to the means of reproducing them — were not ripping them off.
Over time, natural erosion has shifted the goalposts. Ownership of printing presses and record-cutting apparatus — or, at any rate, their modern equivalents in the form of general-purpose computers — has expanded to include members of the general public, and publishers — while by no means utterly redundant — are generally less necessary than has been the case in the past. The duration of copyright, meanwhile, has repeatedly become extended and copyright (by the way, even this is a complete misnomer: it is a privilege, not a right) itself has been subverted into a way of repeatedly making money year upon year after doing something only once. (I’d love to see the look on Sir Cliff Richard’s face if his plumber knocked on his door demanding a royalty fee every time the tortoise-necked old **** flushed his toilet.)
And the Public Domain is not being enriched in the way that was envisaged at the time copyright was originally conceived.
I believe that it is time to reconsider altogether whether, in the 21st Century where almost everyone has access to the wherewithal for reproducing information, the grant of a temporary monopoly to the original creator of a work is still the least unfair way to ensure that the Public Domain continues to be enriched by the creation of new works which can be freely shared by everyone.
AJS, your argument has force in relation to the absolute IP rights, such as patents, which can be infringed by anyone who uses a similar invention. There, the “contract” argument is used to justify them, and the term is indeed limited to about 20 years.
Without wishing to suggest that all is perfect in copyright law, copyright is nevertheless different. No-one “needs” to infringe copyright; in order to infringe it, you need to actually copy someone else’s work. If you start from scratch and think up your own stuff, you will not infringe.
The story Stu reports is very upsetting and frustrating, but is not in fact a valid criticism of copyright. The author has (seemingly) been let down, but by general procedural law not copyright law per se.
I know what you mean, AJS, but I tend to see things in economic terms and without a means to capitalise on artistic or creative work, there’s no incentive to invest in producing such work. So from that perspective (and as someone who is currently trying to make money from my own work) I think a lot of patent/copyright law has a worthwhile place.
As patently says, though, the problem here isn’t the law per se – clearly these people wouldn’t have a leg to stand on if this ever made it to court. The issue is that it’s so difficult for an individual to fight back against this kind of treatment without incurring massive legal expenses at great risk.
Theoretically he ought to be able to counter-sue for the cost of lost business and any money the site have made from the work they stole from him. It’ll be interesting to see how it plays out.
There’s now a fund to raise money for legal representation for him. The internet is amazing, you know.
For me, the simplest solution would be to allow copying but to acknowledge that it is a knock-off and credit the original creator. I know it wouldn’t be a simple as that but I’m ticked off with pretentious copyright owners.
I’d be more than happy to be acknowledged as the original author/artist, but then I’m not a greedy *****. If someone improved the production of my original set of notes that made up a melody, then I can’t see why I should be entitled to copyright protection on what is, in effect, a different product.
The main problem, for me, would be if they tried to use my original whatever for a use I did not approve (such as porn or Pot Noodles). Hmmm, back to square one. OK, what if we use the Wiki model, where I can grant total free use, restricted use, or a complete ban?
Stu, noticed you have added the word that rhymes with witch, but starts with a b, to your ‘banned’ list.
The gvt have got you also? Please look at The Invasion of the Body Snatchers – think of the Blessed Ellie, think of your child…the future
I take the point about this not being about copyright law in and of itself. With this in mind I have reposted a version of my above comment at my own blog, for further discussion there.
Falsely misrepresenting someone’s rights under the law, which is what the website owners have been doing to Jon Engle, certainly ought to be a criminal offence. And if we’re going to have the law treat “Intellectual Property” as though it were tangible property, then the logical extension of that is for “IP” to be subject to expropriation and forfeiture as though it were tangible property.
Lady T – what you are asking for is, in effect, a wider array of “fair dealing” defences for copyright. In other words, an argument that so long as (a) the use was not for profit and did not cause loss to the owner, and (b) proper attribution was made, then there is no infringement.
In fact, several such defences were put into the Copyright (…) Act of 1988 – see sections 28 to 76. These were however cut back heavily in 2003.
AJS – you argue that IP should be subject to expropriation and forfeiture; it is! EU competition law can be (and is) used to over-rule IP, compulsory licences can be imposed on patent owners, and trade mark registrations can be revoked if the mark is not used (or not used properly).
Most criticisms of IP law flow from either a misunderstanding of it, or from its abuse through the exploitation of inadequate/oppressive legal processes.
Patently, loving your work!
What is the copyright situation when written work (whether as a book or lyrics etc) is translated? Clearly, absolute translation is rubbish so there has to be some creative licence to give it the original nuances, as intended (or not, maybe). Do the translators get some copyright deal?
If so, what if the original written work was written in, say, some obscure (non EU) language, discovered, brilliantly translated into English to make it ‘work’ and became a world-wide hit? Who gets what when the French translate the English version, and the Germans decide to re-translate the original then publish an English script?
What are the differences to the above if the original work is in, or out of worldwide copyright?
Or, you could ignore all this and have a cuppa.
Cheers, Tiz
“trade mark registrations can be revoked if the mark is not used (or not used properly)” < - Of course, this has a negative side-effect to, since it means that trademark owners have a fiduciary duty to protect their trademarks lest they lose them. Companies who might not have minded others using their logo (say, for a supporting or complementary product) are forced by their shareholders to seek legal action against any infringements, even if they are meant well… At least, that’s my understanding.
Tizzy, I would expect translation would count as an adaption, and so the original writer would have the right to be seen as the author of the work and also receive a royalty. The name of the translator would take a secondary role. Any subsequent translations would have to credit both of them.
Lady T – the original work attracts copyright, of course.
The translation is an original work in itself, for the exact reason you give. It therefore attracts copyright. However, use of that translation involves copying the original work, so a publisher must agree a royalty with the author and the translator.
The hypothetical French and German translations are works of themselves, so the same applies. Note that a canny publisher will commission a translation from the original, if possible, thereby limiting the royalties that are payable. If they translate the English translation, then three royalties are involved.
As and when works drop out of copyright, some copyrights might still be left. So copyright in the original work might expire, leaving royalties payable to just the translator(s). Of course, anyone is then free to make their own new translation, if they’re good enough at languages.
Stu – most companies are sensible and grant consent or a licence where the third party use will not harm them. Most shareholders are allergic to litigation, especially when the alternative is to grant a licence and get some money in for a change.
(@patently) Aha!
I did know about revocation of unprotected trade marks (in fact, I thought about it only the other day when I was ******ing under the bed and sucked up a used *****). However, I wasn’t aware of the courts ever having transferred or (perhaps the scarier one as far big business is concerned) annulled a copyright or patent. Having said that, and knowing how the Internet works, I expect to be shown a case soon.
If there was a real danger that a patent in dispute might be annulled, then I think that a manufacturer who has already invested in tooling to build the product has less to lose than a patent troll who only bought the patent to use for intimidatory purposes and has no intention of practising it.
Patents are revoked if they are shown to cover technology that was known or obvious at the filing date. This is routine… I’ve lost count how many I’ve applied to revoke.
Compulsory licences for patents are v rare. Usually the ability to ask for one offers a means to apply pressure on a patentee that results in a “voluntary” licence.
And as for copyright, there is the Magill decision that compelled TV broadcasters to grant licences alowing publishers to produce TV schedules.
This dispute is under US law, not UK law, and highlights a major difference between the two. If someone wrote to the UK customers of a client of mine like this in respect of a patent, trade mark, or registered design, they would receive a very curt letter from me reminding them of the law relating to unjustified threats of such proceedings. In short, if the client lost income as a result of such letters, the sender (including the lawyer) would be liable.
Sadly, there are two major gaps in IP threats laws; UK copyrights, and the whole of the US.
patently
April 6, 2009 at 8:40 am