I have artwork from a client that had their logo done sometime back. He presented it to me for dublication and asked if I could do them with the added clause that the company that did it said it could not be reproduced by anyone else.
After seeing the artwork it is nothing more than clipart that I also have in my collection with a couple "tweaks" to change it from the original.
My question is can you take clipart from a collection that anyone could buy, tweak it and call it your own and to go further make a written agreement with the purchasing client that it can not be reproduced? I don't know how the law looks at this. I'm guessing that if you change it by maybe a certain percent then maybe so, but if your "tweak" is 5% of the original design then that's pretty much the orginal clipart if you see what I mean.
I'm not sure of the legalities of copyrighting or reproduction using clipart with another company modifiying slightly.
If this doesn't make sense I'll add more to the post.
Thanks,
Posted by Fred Weiss (Member # 3662) on :
It would depend on the license covering the clipart collection. Most have provisions for prohibiting derivative works .... so the percentage of change doesn't matter .... if you start with their art file you have no rights in it.
The old 5% change idea has been kicking around for years but I don't think it's anything other than a myth.
Trademark and copyright law is strange at times. For example, I was amazed to learn recently that Volkswagen America was granted copyright protection for their modern beetle. It prohibits anyone from drawing or otherwise creating ANY image of a Volkswagen Beetle in its present form.
Posted by Rick Chavez (Member # 2146) on :
Fred pretty much summed it up though I can give you a couple of references to look at. Depending on the contract that the Designer has with the Client, the Designer usually has the rights on how and who will reproduce IF the proper contract has been done and all the criteria is met and is in the interest of the client as well. It seems to me that if you reckognized the clip-art, it has not been modified to the point of original art, and may not fall into a catagory that the designer has full rights to the work. That 5%-20% modification is an old wives tale, if any work is copied and used to the point of being too simalar, it may be deemed that it was not original and an infringment. But does it give you the right to reproduce it? If the client has a identity manual or "style guide" it should spell out who can reproduce the logo, and the way the logo can be used in with that, you can reproduce the design as spelled out by the designer. Two great books to look at for branding identity, the process and legalaties are these two great books.
Designing Brand Identity: A Complete Guide to Creating, Building, and Maintaining Strong Brands by Alina Wheeler
I was just guessing on the 5% thing. I never heard of the actual "myth" before. So, I'll take a look at the links and see what I can derive from them. This particular clipart is from the Art Explosion collection and the 5% modification was just my attempt at putting a degree of change of the original art. My client wants to do business with me, but his higher ups are the ones that signed the agreement. It just seems to me that someone basically took advantage of a clients ignorance to this in an effort to keep all their business, but I think we caught them!
Thanks for the help.
Chuck
[ May 14, 2003, 08:36 PM: Message edited by: Chuck Gallagher ]
Posted by Joey Madden (Member # 1192) on :
just a couple a simple questions.
Who owns the logo, your client or the designer?
If the designer said it could not be reproduced by anyone else, does this designer also do the companies printing on letterheads, envelopes, shirts, jackets as well, or does this just pertain to vinyl or paint?
Posted by Fred Weiss (Member # 3662) on :
According to Nova's license agreement, the designer broka about 9 or 10 clauses and had no right to modify the work, much less provide it to a third party or impose his own restrictions on it. Nova License Agreement
People disregard the whole issue of intellectual property rights on a regular basis and often place themselves or their clients in undefendable positions if challenged.
One of my favorites hits close to home. Bull Steel uses a clipart image owned by Totem Graphics of Tumwater WA as an integral part of their logo and displays it prominently in advertising. It was licensed by Totem years ago to Corel who provides it for "non-commercial use" with a number of their products.
Why should this matter? Well anyone who might wish to can start a business called Bull Steel and recreate the logo and use it anywhere they want except in Bull Steel's legal jurisdiction. Thus trading on whatever value Bull Steel had created in its name and marks. This would be totally legal because Bull Steel has no rights in the artwork or anything else except whatever name protection they get in their home state.
Or Totem might become aware of it and sue Bull Steel for damages or to make them stop using the work.
Sound far fetched? In my town we currently have two restaurants within a few miles of eachother using the same artwork in their logos on their illuminated pole signs.
Posted by Chuck Gallagher (Member # 69) on :
Joey , That's a good question! I'm not sure what the contract says and the man I'm working with is finding out. In essence the artwork is from Art Explosion and then they just used it in a simple logo with very minimal modifications to the original art. I don't know if the company actually "bought" the art and design time. We're finding out. As far as other media they provide, no! Just the logo used for truck doors only.
Fred I've read that license agreement four times and I'm not exactly sure what I'm reading. (I'm not a lawyer!) Item four talks about "software", but to me I think it's referring to the actual program and not the "art". I'm not sure on that one.
I sure would like to know about this because it could mean a lot of business for me.
Thanks again for the investigation and link to the NOVA site. How does Bull Steal define a "jurisdiction"? Boy! I'm not sure how to approach this without opening a can of worms!
Thanks again to all for help on this.
[ May 15, 2003, 08:00 AM: Message edited by: Chuck Gallagher ]
Posted by Fred Weiss (Member # 3662) on :
quote: Fred I've read that license agreement four times and I'm not exactly sure what I'm reading. (I'm not a lawyer!) Item four talks about "software", but to me I think it's referring to the actual program and not the "art". I'm not sure on that one.
I sure would like to know about this because it could mean a lot of business for me.
Thanks again for the investigation and link to the NOVA site. How does Bull Steal define a "jurisdiction"? Boy! I'm not sure how to approach this without opening a can of worms!
In the case of Art Explosion, since it is a collection of clipart and not a program, the clipart, or what I would call "content", is what the reference "software" would mean to me. The only thing close to a program that came with my copy of Art Explosion is the browser files which are a third party product called Portfolio from a developer named Extensis.
I'm not a lawyer either, so if there's a lot of money at stake you may want to invest a couple hundred bucks and consult an intellectual property or software law attorney near you for a more precise opinion. Make sure you have everything printed out and organized to save time.
The reference to "legal jurisdiction" for Bull Steel means the place where that business is legally established ..... normally the state in which they are incorporated. Assuming that is in Maryland or Texas, they would have protection from that state which would prevent anyone else from incorporating in the same state under the same name. They would not be protected from someone incorporating in a different state.
Most states also offer "foreign" corporation registration where, for example, Bull Steel could have a registered agent in Florida and the State of Florida might then not allow anyone else to incorporate there as Bull Steel. The more appropriate way for them to protect their name and trademarks would be to
1. Claim trademark rights by putting a "TM" in any showing of their mark. 2. Actually register their name and marks with the US Patent Office and show a ® symbol in their mark.
As I pointed out before though, because they have used unlicensed, royalty free clipart, a court of law would probably disallow any claim for rights they might make since they have no rights in the intellectual property used to create the work. This would apply even if they had paid the fees to the Patent Office for the legal registration of the mark.
Posted by Steve Burke (Member # 2674) on :
This is quite a grey area- ever go into Wal-Mart and see their el cheapo substitute for a brand-name item? They have similar shape, similar name, and similar color scheme (check out their sub for Centrum vitamins- you'll see what I mean)- but you never hear about a lawsuit against Wal-Mart, eh? I guess it all depends on the size of the company you feel like tangling with...
Posted by Jim Upchurch (Member # 209) on :
Hi Fred, I know Merle Gates, owner of Totem and Jerry the guy that worked for him and did the cartoon. If Merle was related to Bill there would be no problem ! But he shut his business down a couple of years ago (I did his sign for his last two locations) but I assume he would still own the artwork. Not sure how that works. maybe I should call him ?
Posted by Fred Weiss (Member # 3662) on :
Hi Jim, you may remember me from when we were on Lacey Blvd. in the same complex as Totem. Merle is alive and well and still sells his clipart.
We're currently working with him under a license agreement to publish some of his work as vinyl ready clipart and as Gerber Edge ready clipart.
We're in Florida now but we sure miss the nice folks that populate the Great North Wet.
Posted by Jim Upchurch (Member # 209) on :
Hi Fred, yes I remember your sign now. Wasn't sure what it was all about then. I guess Merle just shut down the service bureau portion. I hope he catches those weasels !
I can't imagine why you call it Northwet. My bamboo is only growing about a foot a day.
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