Artwork and clothing

If you are worried about infringement or your work has been copied and you want to take action.
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Mklimay
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Artwork and clothing

Post by Mklimay »

Hello! I am a printmaker and create art from peoples reference photos which I carve and print onto clothing. I specify on my website that photos must be their own or approval given by owner of the photo. I primarily do pets.

I had a dog training company ask if i could make them some t shirts with their logo on it. The main part of the logo ( 3 dogs) i drew from their photographs so it wasnt how their actual logo was - the writing was the same.

I made them the printed t shirts ans they loved it so much they asked if they could have it as their logo. I couldnt do this as, but had a friend who can digitally draw over the logo. Still at this point they didnt share any of their intentions. This was a few months ago.

Today they are advertising they are selling clothing on their website with the artwork I made. Can they legally do this without asking me? By having my artwork turned into a digital vector by a different person have they then got rights to use this on clothing? Obviously if i had know their intention to sell on my work i wouldnt have charged what i did.

Where do I stand on this?
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AndyJ
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Re: Artwork and clothing

Post by AndyJ »

Hi Mklimay,

You own the copyright in your artwork, even though it was itself dervived from the photographs they supplied, as you will have undoubtedly provided sufficient of your own creativity in the new work. And as it sounds as if there was no part of the commissioning agreement which transferred ownership of the copyright to the client, you retain the copyright.

However it is implicit from the fact that they asked you to create a logo for them that you released the work to them with a licence for them to exploit the image for that purpose. Clearly they would not have commissioned you if they thought the agreement prevented them from using the finished logo. I don't think the intermediate step of someone else creating the vector file makes any significant difference. Their copying is largely mechanical and would have involved little or no extra creativity of the sort which attracts copyright.

So really it comes down to what may be thought of as acceptable use of the logo. I assume you would have be happy for them to use it on their advertising and letterheads etc, but that using as a decorative feature on their clothing seems to you to be going too far. Clearly the company have assumed that they do have the right, provided by the implied licence, to do this. In other words the issue becomes one of contract rather than copyright. On that basis, while you may feel you are morally in the right, you don't have a particularly strong legal basis for a claim, since it all comes down to what each side thought they were agreeing to at the time the work was commissioned.

I think that unless the difference between what you actually charged and what you would have charged is pretty significant, you may need to chalk this up to experience. I say that because although you could seek to formally re-negotiate the fee and could maybe even take your case to arbitration, the costs involved in that are likely to outweigh any gain you might make. One of those costs may be adverse publicity, if the company decided to use that tactic. Clearly none of what I have said precludes you from approaching them in a friendly way and seeing if, in the circumstances as you have explained here, they would be open to new fee structure, perhaps based on a small royalty for each item of clothing they sell. But if they decide to get hard-nosed about such a request, be prepared to walk away and forget it.
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
Mklimay
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Re: Artwork and clothing

Post by Mklimay »

Thank you for your reply. I accept this case isnt straight forward so i am looking to learn from this. I suppose the only thing they did was ask me to do the artwork from the offset under the pretence of getting uniform printed, so they had already paid for that service and once I had made it then said they ‘loved’ it do much they wanted it as their logo - but the n havent then assumed this logo anywhere ie ob their website or social media. They have only used this ‘logo’ on the new clothing they released.
Mklimay
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Re: Artwork and clothing

Post by Mklimay »

Sorry to additionally add - obviously the only differce in this case is that I knew after I had profuced they wanted to make it a logo.

For the future and prints I have made since how do I stop any future people getting a logo created from my artwork. Is this something naturally they should consider or should I release some type of statement or contract on the website that they agree to before they purchase?

Nobody since has asked me personally for any art ive done to their new logo as such.
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AndyJ
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Re: Artwork and clothing

Post by AndyJ »

Hi again,

As it appears there was some deception in the way the commission was agreed, that certainly strengthens your case. If the matter ever went to court (which it almost certainly won't) the court would have to decide what contract was in place. A contract based on a deception by one of the parties would be defective and so the court might well decide that the most expedient way to rectify matters would be for the company to pay the market rate for artwork for the purpose they have used it.

The problem is that, assuming the company is not prepared to re-negotiate on a voluntary basis, you will need to engage a solicitor to take the matter forward, and this will cost you money which you may not recover. You could arrange to speak to a solicitor for a free initial consultation and they can then advise you about your chances of success. Alternatively you can use a small-business advice service such as Own-it. But before that, you need to work out exactly what compensation you are seeking. Is it a fixed amount of money, or a royalty, and if a royalty, how much per item? Only then will you know the rough value of your claim, and so have a yardstick by which to measure how much it is sensible to spend in pursuing the claim.

Beyond these broad principles, I cannot advise you on the detailed way to advance your claim. That would be unethical as I don't have the full details of the issues, and you may make a poor decision based on my incomplete knowledge of the facts.

For the future you need to have standard written terms and conditions for how you offer your services and these need to be available to your clients before they commission you. These t&cs will then form the basis of any future agreement (ie contract), unless you agree to vary them for specific clients. Search around to see what other freelance artists and designers use as their t&cs, and adapt them to suit your needs.
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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