Asked 12 months ago - Irvine, CAFlag
I'd appreciate any help, but please contact me if you're interested in this case as there is a lot more proof, emails, texts and witnesses to this story than I can fit it here...
I've designed a Creative logo for the company and I did not Get paid for it. nor received any share of the company as discussed before verbally. As far as I Understand the "WORK FOR HIRE" concept, this is not a Work for hire case as there is no Request from Company for logo, No supervision, No direct pay for logo or no contracts between us.
I've sent the logo in an Email to the guy running the company and no rights have been given to them. I have not registered the Logo by US copyright office. Logo has been used for a year Online, print and in 3rd party websites as well. What can I do legally to get damages or IP
First, in order to bring a Federal lawsuit for Copyright Infringement, you would yourself first have to register the work in question with the Copyright Office. A prerequisite for bringing a copyright infringement suit in federal court, the court of jurisdiction, is a registration at the federal level.
Also, as of recently, when filing a copyright application they require the applicant to declare that is the work was the result of a work for hire agreement, then that agreement does exist, to make a fraudulent procurement argument easier to prove.
Until one files for the copyright, and the other side disputes ownership, this may be more of a breach of contract issue, although the true monetary damages lie with the infringement to the copyright.
I would advise seeking counsel of both a copyright transactional attorney to go over issues of ownership in absence of the proper documents in place and a litigator to move forward against the other party once rights have been secured. As with all litigation matters, it will cost considerable sums of money to bring to trial, and you must asses the potential for damages before making that decision.
If you had an agreement, verbal or otherwise, for work to be performed within one year, you probably have a breach of employment contract claim. If it was known the contract would take longer than a year to complete (i.e. the logo would not be designed within one year), by contrast, the contract had to be in writing to be enforceable under the Statute of Frauds. (California Civil Code section 1624). The Statute of Frauds, as the name implies, is designed to prevent fraud by requiring certain contracts to be put in writing, including contracts which cannot be completed within a year.
Your damages in such a case would be the agreed-upon amount you were to be compensated under the contract (also known as "expectation damages" in contract law because it is the amount you expected to receive when you performed the labor), and likely you will also receive accrued interest. You could seek a separate emotional distress claim, but those are very difficult to succeed on unless the stress has caused you to seek some form of medical treatment, psychiatric care, etc.
I cannot speak to your IP issues, I am afraid, but it sounds like you definitely have an employment law case and you should consult with a local employment lawyer about what to do next. You probably want to have a full, in-person consult with both an employment lawyer and an IP lawyer to make sure you are hitting the case from every possible angle.
The answers provided by Evan, Dustin and Maurice are good answers. From a practical perspective, what are you looking for? Money? You want to get paid the value of your services? Or do you want to protect your work? Or do you just want to stop this guy from using your work?
The most direct route to take may be a breach of contract suit. For a breach of contract, you have to prove the following facts:
1. That you and the defendant entered into a contract.
2. That you did all (or substantially all) of the things required in the contract.
3. That all the conditions required for the defendant's performance occurred (i.e., you delivered the services you were contracted to perform).
4. That the defendant failed to meet his obligations (i.e., compensation or share of the company).
5. You were harmed by the defendant's failure to meet his obligations.
From the facts you presented, it sounds like you might meet each of these elements. An attorney with contract experience can walk you through the details and the potential defenses the defendant will raise. Evaluating your strengths and the other side's potential defenses is an important exercise before you file the lawsuit.
Also, keep in mind that California recognizes the concept of quantum meruit. From Strong v. Beydoun (166 Cal. App.4th 1398 (4th Dist. 2008)):
"`Quantum meruit refers to the well-established principle that "the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered." [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that "the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made."' [Citation.] The burden is on the person making the quantum meruit claim to show the value of his or her services and that they were rendered at the request of the person to be charged. [Citations.]"
You may have some good remedies, but figure out your objective first, because that will help you and your attorney focus in the right direction and possibly avoid the copyright issues that were properly raised by the previous answers.
Sadly, far too often creative people like you are mistreated in situations like this. The company is going to claim that you granted it a license to use the logo and that you did not demand payment as a condition precedent for the license. The company will prevail unless you can convince a court that payment to you was a condition precedent to the grant of a license to use your photographs. Verbal communications may be admissible in evidence to support your claim. But merely showing that you created the logo and that you were not paid is not sufficient---you need evidence that you insisted on payment of a specific amount on a specific date before they could use your logo.
Also, you cannot bring suit for copyright infringement until you register your logo---if you have not done so you should do it immediately. But if you did not register within three months of the first use or publication of the photograph, you may have lost your right to seek attorneys fees and statutory damages, If you lost these rights, then your case is not worth enough to litigate.
Here is what you did wrong---when you agreed to provide services for this company you should have entered into a written agreement. And you need legal counsel to advise on such matters---your failure to work with legal counsel to make sure the terms of your agreement were clear is likely to cost you a lot of money. Anyone in your business must necessarily develop a working relationship with legal counsel. Your investment in counsel will pay major dividends for you in the long run. And your current dilemma arises precisely because you did not involve legal counsel when you agreed to prepare and design this creative logo. Any professional in the arts must work with legal counsel to review such agreements and make sure they cover the professional's rights and legal interests. And failure to do so is, frankly, a very unwise decision.
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