i'm being accused of misrepresentation + copyright theft!!! HELP!

[agoni_dsp]

hello everyone, i need some help

first up i'm in the uk.

I recentley finished a three month (uncontracted) trial with a local design firm. The trial ended and we mutually decided to go our seperate ways. I took this departure as an oppertunity to go freelance. I finished building a website to advertise / promote myself as a freelance web designer and it includes a portfolio of work i have done and clients i have worked with / for. I got a very angry call this afternoon from my previous boss demanding that i remove any referance to any job done at bagshots (the company i worked for) I was being threatened with legal action and was told that i can't use those sites as examples of my work as it isn't my work. it's theirs. I was told this is misrepresentation and copyright theft. he threatened to sue me for £25,000.

My dilema is this; I did do the work. I never claimed (anywhere) on the site that i owned the work or that i owned the copyright. If the portfolio item was not entirely designed by me then that was clearly stated. In regards to the client list; i had a notice (disclaimer) which read along the lines of : "i have worked with / for some notable clients over the years. be it with design firms, other designers or on a freelance basis" then a list of every comapny i've been involved with.

After recieving the call i attempted to compromise by putting a copyright notice on every itme in my portfolio which belonged(?) to bagshots.

Now i don't know what to do. I did that work. I'm proud of what i did and want to showcase it.

Has any one come across this before? What are the legal implications?

I've done some research and decided that misrepresntation is probably false. As (According to what i found) this only applies to getting people to sign contracts(?)

But i don't know where i stand on the copyright side of things. I'm merely refrencing these sites and describing how i was involved in the site.

my site is http://www.dspmedia.co.uk the portfolio items in question have been removed, but they followed the same format as the remaining ones.

I'm really desperate. please help.

Many Thanks
Craig Mackenzie

[johntabita]

I'm in the States, so I'm not sure how much of this will apply. I'm assuming the US and UK copyright laws are somewhat similar.

Were you hired as sub-contracted labor, or as a full or part-time employee? In the US, any employee's work falls under the "work for hire" category. That means your boss is correct; they own the copyright and not you. US Copyright law states that if you are not the legal author of the work, you have no right to display the work in your portfolio without permission.

Now that generally applies to physical copies of the work in question. You could argue that you're not displaying a copy of the work, you're merely linking to something that's already publicly available. But the mere fact that you're linking to it through your portfolio page can be interpreted as "displaying" it. In the absence of a contract, my non-legal opinion is that a court would probably side with the copyright holder on this issue.

Another option is to see if they'll agree to allow a "private" display of your work, where you have printed screenshots of those sites to be able to show during a face-to-face meeting, rather than a public display on your website.

Print designers working for agencies put their work in their portfolio all the time. The agencies are usually fine with this, because they realize that these designers use this to get other employment or freelance work, and not to compete with them. You, however, are in a position to compete with the company you used to work for. That, I suspect, is at the heart of the stink that they're making. If so, they may not give you permission to use the work in any fashion.

Hope that helps.

[agoni_dsp]

thank you this does help clarify matters slightly, however what if i was to display the information with a copyright notice? Isn't this allowed? Something to do with fair usage and non-substantial portoions of copyrighted work? (ie. i'm just using a tiny 80px x 120 screen dump, not logo etc.)

I'd really like to include this stuff in my portfolio, i feel really angry... grrr

Oh and in regards to employment i hadn't signed a contract...

[johntabita]

Originally posted by agoni_dsp
thank you this does help clarify matters slightly, however what if i was to display the information with a copyright notice? Isn't this allowed? Something to do with fair usage and non-substantial portoions of copyrighted work? (ie. i'm just using a tiny 80px x 120 screen dump, not logo etc.)

I'd really like to include this stuff in my portfolio, i feel really angry... grrr

Again, I'm not a lawyer, so take what I'm saying with a grain of salt.

The "fair use" argument is the other side of the coin on this issue. Some would claim that what you're doing falls under the terms of fair use. Unfortunately, if push comes to shove, you may find yourself arguing that point in court.

The way I see it, your options are:

• Back down to avoid a lawsuit
• Try to negotiate a "private" display, as mentioned in my previous post;
• Talk to an attorney and, if you have a case and are willing to go to court (or call their bluff), stand your ground;

Originally posted by agoni_dsp
Oh and in regards to employment i hadn't signed a contract...

In the US, there are certain criteria that is used to determine if the relationship fall under employment or contract work. For example, if you're a contractor, they can specify "what" you are to do but not "how" you do it. If they direct you in how you should work, or when, you're an employee, no matter what any contract might state.

This is another good reason to consult an attorney. If UK laws are similar, and you really were a contractor, then you might just be the legal copyright owner of the work.

[TheOriginalFlashDavo]

Yeah, that type of legal copyright thing is fairly standard. If you work as a contractor you own none of the work you have done, and legally you did not do the work, the company employing you did.

What designers usually do is either have a boss who does not mind them showing the work, have an agreed contract that allows display of work in a portfolio in some way, or else they simply show only privately in which case nobody will know about it.

In simple terms, they are quite within their rights to ask you to remove their work from your personal portfolio.

[RazoRmedia]

TheOriginalFlashDavo,

On the contrary, I wholeheartedly disagree.

1) You didn't sign a contract and therefore you were only using their workplace to create work to benefit the company. Having no legal documentation signed means they have absolutely no right to the work if they lost it off their systems, let alone, total rights to demand you remove it off your site.

2) The intellectual property is a grey area if you had signed a contract, as you have not, total intellectual property of the work is yours.


I once had a similar problem with an ex employer and wanted to display work I was proud of. They refused to let me and asked me to hand over all files I had. I sought the advice of a legal friend of mine who now specialises in this area and the advice given was change it. Even if its just some images or the preloader. As soon as you are out of that environment and change something in the work, its your work, its a new version, an updated file.

If I were you, I'd state these facts to them:

1) No contract means no legal rights (for you or them) so any work you have is yours. If you hadn't signed a contract and they wanted rid, they could have done there and then, a contract is for the benefit of the employers as well as the benefit of the employees
2) You are not stating the work as merely you're own but are linking to them and saying the work was undertaken by you (and possibly others!?) whilst working for them
3) That their feeble threats to sue will prove absolutely fruitless and costly and unless they cease their threats you will take down any mention of them on the site alongside the work.

Don't be worried by clueless employers who think they have the right to demand things of an employee after they've left. They haven't a legal leg to stand on and as soon as they seek legal advice, they'll realise this.

[TheOriginalFlashDavo]

2) You are not stating the work as merely you're own but are linking to them and saying the work was undertaken by you (and possibly others!?) whilst working for them.

Well, very cut and dried in Australia. If you are employed as a contractor for a company (and even without a contract, if they've paid you in a certain way then there's their proof - at least over here), then all work you do belongs to them, end of story.

From general conversations and a little research I had believed that true of most countries, but maybe other areas/states within other countries have differing laws, something to research then.

[RazoRmedia]

its a grey area here in the UK but normally the law favours the contractor. No company in their right mind would attempt an intellectual property case over here unless they had more money than sense (coca cola, microsoft etc).

[TheOriginalFlashDavo]

Originally posted by RazoRmedia
its a grey area here in the UK but normally the law favours the contractor. No company in their right mind would attempt an intellectual property case over here unless they had more money than sense (coca cola, microsoft etc).

Really? Damn, over here (Oz) you're pretty shafted unless you can prove the work was done as a freelancer rather than a contractor.

You got any linkies or articles about this, 'cos it would be a VERY valuable piece of evidence to have for future reference?

[PCRIDE]

pretty sure your old boss is correct, you were hired as an employee and was instructed to do work, so that makes it the companys work, not yours personally


Like my buddy made a website builder page on line, for this company, he sold the software for 15,000 US, instead of getting the money , he wanted a copy of the software, so now he can sell it over and over.


so I think your outof luck but there may be other items that i am not aware of. but technically its the companys work.

if you worked at M$ making windowsXP, and then got fired, you can't say that its your material or copyright any part of it. it all lies in the contract you signed when you were hired, like terms of employeement, But you sstill may have a chance

thats my opinion

[RazoRmedia]

no contract though.

And the thing is, working for Microsoft, you'd be working on a team and its not stealing the software and selling it on, its saying 'hey, I worked on this, look at what I did for this company'.

[agoni_dsp]

thanks for everyone's input so far, this seems to be quite a complex and undocumented area of (uk) law, i appriciate the comments in regards to the law in other countries, but can't help but feel they are lost in reagrds to my certain specific situation. although many thanks.

it has been a couple of weeks since i originally posted this, and after many letters from my ex-employers solicitor, the matter is now in hiatus. i am waiting for an appointment with a local law firm and will be seeking further legal advice. i simply have to reiterate the point the i never did attemptet to claim copyright, or associate myself (directly) with the companies whom i developed websites for, i mearlly attempted to make referance to work i HAD done.

i have been planning a slight re-design to my portfolio as of late and am considering adding a discalimer. a proper legal disclaimer. in theory this should stop anymore solicitors letters right?

i will raise this idea with my solicitor when i get my appointment. i have to just say thank you again, for all of your help. it means a lot.

[RazoRmedia]

let us know what happens agoni_dsp.

[PCRIDE]

Try this,

get written permission from the clients that bought the website, graphics, etc..

to use them on your site. Right becasue the clients bought the site from your old company, so that make it their content.

[johntabita]

Originally posted by agoni_dsp
i have been planning a slight re-design to my portfolio as of late and am considering adding a discalimer. a proper legal disclaimer. in theory this should stop anymore solicitors letters right?

IMO, not likely. The fact that these sites are in your portfolio in the first place is probably what your former employer has a problem with. Copyright infringement is merely legal means to get you to remove them.

Think like a business owner for a moment. Imagine you have so many clients that you had to use freelancers to do your design/development work. You worked hard to get these clients and you go the extra mile to maintain good relationships with them. And now one of your freelancers puts the sites he's worked on into his portfolio. He's not claiming that he "owns" the work, merely that he did the work. Now imagine some of your clients seeing their site in his portfolio. How would you feel? How would you react? That's most likely where he's coming from, and he probably won't back down unless proven legally in the wrong. It's good you're getting legal advice. I wouldn't do anything else until you talk to him. Please let us know how things turn out.

[TheOriginalFlashDavo]

Originally posted by PCRIDE
Try this,

get written permission from the clients that bought the website, graphics, etc..

to use them on your site. Right becasue the clients bought the site from your old company, so that make it their content.

Well, again, of my understanding (at least in Australia) unless it's clearly specified in the contract between the client and the development company that the company is signing over all copyright ownership to the client, the development company actually owns the copyright to the website, and the client only owns a licence to use the website for the purpose agreed to.

Not to the content used therein (the copy, photos...etc) but to the site itself, yes they do.

Now, as clients become more aware of their legal standing in this issue more and more of them are making sure the contract provides them with copyright ownership, however most clients (especially smaller companies) are still unaware of this and as a result don't own copyright to their own site.

[TheOriginalFlashDavo]

Originally posted by johntabita
Please let us know how things turn out.

Yes, please do. I will be surprised if you have a leg to stand on, but will be quite happy to be proven otherwise.

[wetwrkz]

I know this has been ongoing for you but here in the states, the graphic arts guild was formed to ensure 'ex employers' don't get your hard work, the big chunk of the money, AND the credit for your work.

www.gag.org

They work to promote the 'fair use' act. Which allows, freelancers, and contract employees to use work they have worked on or produced in their portfolios. Especially when no PRIOR contract forbidding use exists.

I have had several 'sour' clients try non compete (after the fact) forbidding me from using, or showing work.

In 10 years I have never entered a courtroom, regarding threats like the one you have outlined.

Hope it helps,
if nothing else give the information to your solicitor to use. He can argue that it is the basis for freelancers/contractors and should be recognized in the UK as it is in the US.

Wetwrkz