Website illustration used without my permission

  HighTower 09:00 13 Oct 06

Hi folks,

I recently undertook a web project, provided initial illustrations in pdf format and then had a call saying that the project was being cancelled and that they didn't actually want a website anymore. I though this was strange but put in an invoice for my time spent anyway and thought that was that.

I was rather suprised to go to the url on spec one day and find a site online using my site design exactly as it was in my pdf. I've contacted the company via email to ask them to explain this but haven't had a response yet, although I haven't given them time to respond yet.

Any ideas where I stand on this legally and what the best course of action to take will be? I won't name and shame yet, but may later!

Thanks 11:30 13 Oct 06

for the time you spent, then doesn't this cover the work you did in that time, which could mean they own it? I'm not sure.

  JaneAusten 12:54 13 Oct 06

If no contacts were signed, you may not receive reddress. Wait and see what they say in their e-mail.


  PurplePenny 22:26 13 Oct 06

I think you need FE's input on this one.


  HighTower 22:45 13 Oct 06

The way I understand it copyright is an automatic right that is applied when something like this is created, whether it be a writing, a photograph or an illustration. And I also understand that copyright stays with the author unless it is actually given away via a signed document. So unless there is a written agreement where I give the copyright away to the customer then it remains with me.

Incidentally, the "customer" has also to date not paid their bill, so this may have some bearing.

Thanks for your posts. Would be interested to hear what FE has to say.

  Forum Editor 23:23 13 Oct 06

There's more than one aspect to this situation,

and the first thing to mention is that there's no copyright on ideas. That means that you can't claim copyright in respect of say, a navigation system, or the overall structure of the site.

Now let's look at the PDF you provided. Any illustrations contained in it are subject to copyright if they were created by you, and they may not be reproduced or published without your prior consent. Likewise, any text content that was written by you is protected by your copyright. These elements (images/illustrations and text) are what are called 'original works' - as is the PDF file itself - and may not be reproduced, distributed, or otherwise published (in whole or in part) without your consent and/or the payment of a copyright fee.

Sometimes clients and web designers enter into a contract, the terms of which include a provision that the copyright in the whole of a site's content will pass to the client on payment of an agreed fee, and indeed, this is the way I work with all my clients. They own the copyright in everything I have written, and in any images or logos I have created, once they've paid me for the work - and not before. What I can't copyright (and nor can you) is the site structure itself - the layout of the pages, backgrounds, colours etc. Those are concepts, and concepts aren't subject to copyright. If you have an idea for a book for example, you can't protect it with copyright. Write the book however, and copyright in the entire content exists automatically. Someone else could write a book based on exactly the same idea, provided they don't copy your text. In the same way, someone can design a website based precisely on your idea(s), provided they don't copy your content. When someone has been commissioned to produce an original work (say the content of a website), the copyright in that work is vested in its creator, unless there has been a prior agreement to the contrary. In that situation copyright only passes to the commissioning client with the creator's consent, and this is normally when a previously-agreed fee is paid.

Does that help? It may not be what you want to hear, because it means that there's little you can do if this company has simply used your design ideas. If they've used your text and/or images the situation is dfferent, but from what you say I guess that doesn't apply. You might also find that unless you had some prior agreement to the contrary the company is under no legal obligation to pay your invoice. Did you make it clear at the outset that charges for your time would be payable in the event that the project didn't proceed?

  Kate B 01:19 14 Oct 06

It's beyond infuriating when that happens. I've a couple of times pitched an idea at a features editor, had it rejected and then later on seen that they've got a staffer to write the feature that I pitched. No comeback except possibly a mildly snotty email to the features editor, which is satisfying but not always constructive.

You could invoice them for the time you spent on it if their work doesn't infringe your copyright and depending on your relationship with them I'd suggest trying that. They might be embarrassed enough to cough up. Good luck.

  Forum Editor 11:15 14 Oct 06

and you sent me a copy of the PDF you prepared for the client. I've also seen the site that was eventually designed by someone else. I'm up to speed on the situation now, and I hope you won't mind if I respond here, so others may follow the situation. There are two main points:-

1. From what I can see of the online version of the site there are no copyright infringements. You tell me that you didn't design any of the logos that are used, and you didn't write the text. You wrote a slogan, and they've used it, but it's not a serious breach, and certainly not one that is likely to result in an award of damages in the event that you brought an action against the client.

2. You tell me that the client sent a copy of your PDF to the eventual designer, and if that is the case (and you have evidence of it) you're on very much stronger ground. The content of your PDF file constitutes an 'original work' within the meaning of the copyright laws, and unauthorised distribution is a technical breach. That said, you must consider the matter from the point of view of a court, and ask yourself "have I suffered a material or potential loss as a result of the breach?"

You tell me that - because of amicable prior dealings with the client - the arrangements with regard to this project were "less formal" than would otherwise have been the case, although you say that you have emails which "basically accept the project, for what little they are worth!"

If the emails give you a clear understanding that the client accepts your proposals for their site on terms that you provided, they may be worth a very great deal, because they would constitute an acknowledgment that a contract existed between you. If that's the case you may have a good claim for an action for breach, but I would need to see the emails before I could say more than that. A verbal or written commitment to accept your costed proposals for a site design would be legally binding, and if the client subsequently awarded the contract to another company you would be justified in litigating for breach of contract.

Otherwise, and on the evidence I've seen so far, you have reason to feel aggrieved, as Kate has said, and you may have a copyright breach if the client passed on your PDF. They appear to have treated you badly, and in your shoes I would want to press hard for a payment.

Let me know if I can be of further help.

By the way - your design version was far better than the one they have online, if that's any compensation.

  HighTower 12:15 14 Oct 06

Thank you for your incredibly useful comments. I've mailed you a little more, and am more than happy for you to post your reponse to this on the forum (provided no company names are mentioned of course, I appreciate your discretion so far on this!).

Thanks again, I've certainly learned a lesson and will change the way I do business, although I am franky disgusted than any business will treat someone like this after I've tried my best to help them.

  HighTower 12:16 14 Oct 06

. . . and I think you are right! My design version was far superior! Modest as ever but it makes me feel a little better!

  Forum Editor 12:26 14 Oct 06

that passed between you and the client, and they're interesting. I find myself in the position of someone who could argue a case for both sides.

On the one hand the client clearly expresses a desire to work with you - they've said as much in one message - but on the other hand they say that they obtained alternative quotes, and ask you if you can lower your price to meet those. That may have been a ploy, or it may have been true. Arguing for them I would say it makes it clear they hadn't definitely given you the green light.

Arguing for you I would point to the other emails, in which they engage with you on technical details related to the domain name hosting - a pretty clear indication of your involvement in the project. They say " I will be in touch soon and look forward getting started." and "we are keen to keep our relationship with you throughout this project"

Both those statements would seem to be a clear indication of intent, and would lead most people to conclude that they were the chosen designer.

There's no conclusive award of a contract however, and I wouldn't want to set out a case for litigation based on those emails.

Pursue them for payment of your invoice - you've nothing to lose. Play up the 'declaration of intent' angle, and see if you can bluff them into paying you to go away.

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