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designing and making

 
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dajasm
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PostPosted: Mon Apr 22, 2013 4:27 pm    Post subject: designing and making Reply with quote

Hello
I wonder if anyone can help me out?

Last year my girlfriend was asked to make an item of headgear for a show. She was supplied with a picture, nothing more, of the item.
She then designed the headgear to look like the picture, sourced her own materials and made it. Her client was happy with the result and paid for it.

She showed some of her friends pictures of what she had made and the response from most people was "that's amazing, you should sell them".
So earlier this year we decided to do just that.

Our designs have altered quite a lot since her originals and each one is different. We are doing this almost as a hobby interest.

The client has now been in touch saying that there are copyright issues here and that they want to schedule a meeting early next year to talk about a license fee if our, as yet small, business takes off.

I don't know who owns the copyright here as the design and making of the piece was all my girlfriend's work and the item in question isn't a particularly original design anyway. The client stated in a phone conversation that they got the original image from the internet, but I imagine that'll be hard to prove in a court.

Many thanks for your attention
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AndyJ
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PostPosted: Mon Apr 22, 2013 6:57 pm    Post subject: Reply with quote

Hi,
Before answering in detail, there are several details which it would be helpful to know. For instance, what was the nature of the 'picture'? Was it a sketch, a fully worked up artist's impression, a design document with measurements or a photograph of an actual 'hat'?
Also does your girlfriend still have this picture? If she does, it is important to keep it safe, along with any written instructions or other correspondence she has from the client.
It sounds as though this issue could involve either copyright or design right*. With both types of right, it is essential that the work concerned is original; so for example, sketches or artistic visualisations could well be the original creation of the client, and quite hard to prove that they aren't, whereas, if as you say, the client obtained the sample picture (especially if it is a photograph of an actual hat) from the internet, then clearly it is not original to them and so they would have no grounds for claiming either copyright or design right. Indeed they would have to prove this fact before any claim of infringement could proceed. On the other hand, if as you mention, the "item in question isn't a particularly original design anyway" then neither right may exist, and the client is misleading himself as to his rights.
Obviously if your girlfriend still has the sample picture, there are ways of using Google image search or TinEye etc to try and track down the image's original source.

In order to avoid having to cover too many alternative scenarios, if you can answer these queries, I will try outline what I think the law says about this.


* the distinction may become important, depending on the facts in this instance. For example if the client commissioned the headgear and was deemed merely to have come up with the idea or concept, then unless any prior agreement was made concerning copyright, your girlfriend would own copyright in the work she created, or if the client's input was more substantial it could be they jointly own the copyright. However, under design right, the client who commissions the work is automatically the first owner of the design right in it.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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dajasm
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PostPosted: Mon Apr 22, 2013 7:47 pm    Post subject: Reply with quote

Hi Andy

The only image the client provided was of a shop dummy wearing the headgear. It looks like the heagear has been cut and pasted onto the model as it doesn't fit very well to the head which would match with what the client told us. I would describe it as a piece of concept art rather than a design as there are no measurements, notes on construction or anything like that.

That is literally all that was sent to my girlfriend originally and from that she designed and constructed the whole thing herself with no guidance from the client. She still has the picture.

The headgear itself is not a one off, there are many examples of similar things already being made in Etsy shops as well as many traditional examples from tribes around the world which my girlfriend also used for inspiration.

Since we started making our stuff to sell though the pieces have undergone a lot of changes in construction/colour/ways to attach them to the head/decoration and so on. So am I right in thinking that even if the client did have the rights to the ones my girlfriend originally made they couldn't also claim the rights to the ones we make now?

Hope I have given you enough information, and thank you so much for your time
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AndyJ
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PostPosted: Mon Apr 22, 2013 9:43 pm    Post subject: Reply with quote

Hi again,
OK so that sounds like it's a photograph of this tribal headgear on the dummy. And from your description, your girlfriend had to make a lot of design decisions before she could make the headgear.
On that information, I would tend to rule out any design right (except possibly in the case of the final version your friend produced, but that isn't really relevant here). There are several reasons I say that is that. Firstly because I don't think that any design has been registered. That is important because registered design right has much stronger protection associated with it. Secondly, for unregistered design right to apply, the design must be manifested in a design document or an article made to that design, and not just be a concept. The headgear in the picture does not sound like a prototype, and indeed you yourself said it looks like concept art, so I think whatever is in the picture fails the test. Thirdly, for your friend's later versions (ie not the one made specifically for the client) to infringe design right they would have to match exactly or substantially to the design. That does not sound like what you described. And finally, to gain UDR protection the design needs to be original, that is to say not copied from an earlier work or commonplace. Again based on what you told us, it sounds as if the headgear in the picture lacks originality.
So does copyright apply? Maybe. At the very least the picture itself will be in copyright as a graphic work. And the picture itself is original (in the sense that it was created by the photographer), although it does not follow that copying the headgear illustrated within the picture necessarily infringes the picture. Making a 3-dimensional work from a 2-dimensional work would be infringement, assuming it used a substantial part of the 2-D work. But we don't know who owns the copyright in the picture: it could be the client or it could be some anonymous person on the internet. If it is the former, then your friend's first version is OK because it would have been authorised by the copyright owner, but there may be a question mark over the later 'hats'. I'll cover that scenario later. However if it is the latter case, then the client is in the position of having 'authorised' an infringement by commissioning your friend to make the copy, without permission and so is liable under s 16(2):
Quote:
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
The only way he can avoid this liability is to argue that the actual headgear your friend made was not a copy of the one in the picture, in which case your friend would be the owner of the copyright in her work.
As you mentioned in your first post, the key to this is being able to prove who owns the copyright in the picture. Unless the client can produce some hard evidence to show that he owns the copyright either in the picture or the underlying work (the headgear shown in the picture) I think the presumption is that he owns neither and so has no claim to any property right whatsoever.
That means that copyright in the first headgear produced for the client either doesn't exist (because it was an infringing copy of another person's work) or that if there was sufficient new creativity on the part of your friend, that she created a completely new work to which she owns the copyright. It makes no difference that she was commissioned, because unless it was specifically agreed otherwise beforehand, she retains the copyright and the client would merely be entitled to receive the article itself.
Quote:
(1) In this Part “author”, in relation to a work, means the person who creates it.

And so of course your friend is thus within her rights to make further copies of her work, regardless of whether they are similar to or different from the first one.
That just leaves the tricky situation where the client can show he owns copyright in the picture and/or the headgear shown within the picture. Undoubtedly the first copy produced by your friend would not infringe because it was authorised by the rightful copyright owner, but the subsequent versions will not have been authorised, and it then becomes a matter of whether they copied a substantial part of the first 'authorised' headgear. Given that the whole provenance of the original mock-up on the dummy seems dubious, I think it would be extremely hard to prove to a court that whatever was 'original' in the mock-up had been substantially copied in the later versions. It sounds as if it would relatively easy to find earlier examples of this form of tribal headdress to show that your friend's work drew on generic features of that type of headdress, rather than on copying a specific item, namely those features of the headdress in the picture which could be said to be non-generic.

A very complicated answer, I'm afraid, to basically say that I don't think your friend has any need to worry about the meeting with the client.
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dajasm
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PostPosted: Mon Apr 22, 2013 10:06 pm    Post subject: Reply with quote

Thank you Andy, a comprehensive answer and I very much appreciate you spending the time and effort.

Smile
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