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copying my concept

Posted: Wed Nov 21, 2012 1:01 pm
by cathy
I went for an interview with Matalan for the position of seasonal designer last year, i got asked to produce a brief and submit my designs of wrapping paper , cards, bottle bag etc.
Idid this then they said the position was no longer being filled
I have now been into Matalan and they have used my concept on a wrapping paper and on two cards, they are unmistakable, i designed a snowflake all over print and then constructed a christmas tree out of snowflakes for on the card design with a matching card using snowflakes as if they were baubles
They have done exactly the same concepts but have changed the snowflake shapes and colours
Do I have a case against them?

Posted: Wed Nov 21, 2012 7:15 pm
by AndyJ
Hi Cathy,
It sounds as if you may have a case. However as only you can assess the degree to which they altered your design, it's hard to be categorical about your chances. Clearly the more they have moved away from your concept the easier it will be for them to argue that their design is similar due to coincidence, not copying.

Did you keep a copy of the brief and designs you created? These will be very important in proving any claim you may have. Also do you have any witnesses amongst your family or friends who can testify as to the time when you were working on the designs? If you have any computer files of the designs and any emails or other documents associated with the interview and their requirements, make sure you keep them safe.
Next you need to decide what you want by way of remedy. Typical remedies include getting them to stop using your design or getting fair recompense for your work. Since the former brings you no financial reward, I suggest you need to negotiate a deal whereby you are not only paid for your time, but also for licensing your intellectual property to them. In order to get any kind of compensation, whether in the form of an invoice, an ex gratia payment from the company, or ultimately as damages through the courts, you need to put a cost on your work. This is hard to evaluate, but I suggest you estimate how long it took you to do the designs etc and apply a sensible hourly rate to that figure*. In theory you could add on an amount to cover the aggravated nature of this alleged infringement, although if the matter were to go to court (I would strongly advise against this) then that element would be for the court to decide once it had found in your favour.
Next, approach the company with your complaint. Make sure everything is in writing, either with formal letters or emails. If there are any telephone conversations, make sure you record as much detail as possible about who you spoke to and what was said, together with the date and time of the call.
Keep your initial letter factual and to the point. There will be time to elaborate and provide evidence later once you have had their initial response. I suggest you take the line that since they have used your designs, you will be submitting an invoice for the work. You need to ask them whether they wish to have a fixed term licence to use your work, and if so for how long and whether they would want it to be an exclusive licence (my guess is that they would), or alternatively do they wish to buy your copyright in the design. All these alternatives will have different values, with a transfer of copyright being more costly than a one-year non-exclusive licence. Don't submit the invoice with the first letter. Depending on their reply, your next step may be to submit an invoice, using the costs you have already worked out for whatever option they have indicated, assuming they have agreed to meet your costs, or alternatively if their reply is dismissive of your claim, you can inform them that you will be taking legal advice with a view to full litigation, the costs of which will be added to your claim against them. Head your initial letters (but not the invoice) with the words "without prejudice". Basically this means that the correspondence is not admissable as evidence in court and thus any offers made at this stage are not binding so as to prevent you from taking the matter to court at a later stage if required.
However, you really do not want this to escalate to that level. It would be fearfully expensive and well outside any sum of money you may get in damages or other settlement. And of course you should not consult a solicitor until you really feel you are out of your depth, for the same reason of the cost. A solicitor's letter might cost as much as two hundred pounds, and may have only marginally more effect than a letter you have written yourself. It is worth talking to Citizen's Advice if you can get an appointment fairly quickly, as they may help you draft that all important first letter.

The bottom line is: how important is this to you? If you are just peeved then the possible hassle you face won't be worth the time and stress. However if you feel really strongly about it, then be prepared for the stress, and stand up for your rights, but hold on for a bumpy ride which you have a fair chance of winning.

* the hourly rate has nothing to do with any wage you might have been on had they employed you. It should be something like the rate a free-lance artist or designer would have charged to do the work as a commission. I suggest the figure shouldn't be less than £20 per hour, and possibly double that.

Posted: Thu Nov 22, 2012 8:11 am
by cathy
Thank you so much for your advice
I shall follow it and let you know how i go on
Many thanks

Posted: Fri Nov 23, 2012 1:28 pm
by AndyJ
Thanks, Cathy. It's always nice to hear how things resolve in the end.
By way of background I think this posting on the 1709 blog may be of interest. Clearly the issues it discusses are relevant to your problem, albeit the article looks at them from the respondent's point of view.