A © Infringement Case Study

This article is part of our ongoing series highlighting the many ways the work of graphic artists is stolen. If you have an infringement story you’d like to share, contact us at advocacy@graphicartistsguild.org.

Jay co-owns a design and illustration studio with her husband in Las Vegas, Nevada. Their client list is broad, and includes non-profits and small businesses operating in a wide variety of industries. The studio is successful, having been in existence for over 30 years. And yet, despite her success with her clients, Jay has had to deal with her share of copyright infringement. In her case, an unscrupulous client used a sketch she had set him for a logo project he told her he had rejected.

In her case, Jay’s copyrights were infringed by someone whom she had trusted as a long-term client. The client was a local restaurateur who, over the years, had hired Jay to design a logo and other collateral for his establishments. In fact, she and her husband had become so close to their client that they had socialized. Jay’s client was well familiar with working with designers and licensing work from them.

When the client contacted her about developing a logo for a new restaurant , Jay eagerly agreed. She delivered a series of initial ideas, tight comprehensive sketches delivered as PDFs. However, (and unusual for him) the client didn’t respond with feedback. When Jay sent him an email surmising that he must have not liked her sketches, he finally confirmed that he didn’t want to proceed. However, he ignored the invoice she sent him for her small kill fee. She contemplated taking him to small claims court, but decided it was wasn’t worth the effort for such a small amount. It was a sad conclusion to what Jay thought had been a good client relationship.

She promptly sent her (now former) client an email notifying him that he had not licensed the copyrights to the logo and did not have the right to use it*. He emailed her back, “You should take me to court.”

A few months later, Jay happened to be driving past the location of the new restaurant. To her shock, she saw that one of her sketches had been made into neon signage. She promptly pulled over and went in, only to see that her logo design had been applied to the menus, coasters, specials cards, and other materials. She promptly sent her (now former) client an email notifying him that he had not licensed the copyrights to the logo and did not have the right to use it*. He emailed her back, “You should take me to court.”

Contemplating taking her client to federal court for copyright infringement was a difficult decision. Jay weighed the cost in time, legal fees, and heartache against the award she could possibly receive, should she prevail. She also took into consideration that her former client had legal counsel on retainer and the wherewithal to drag out a court case, running up her legal costs. In the end, she felt that the risk and cost of bringing a copyright infringement lawsuit was too great to proceed. Her fears are well founded; the AIPL has estimated that the average cost of a copyright infringement from pre-trial through the appeals process is $278,000.

The CASE Act would make it harder for infringers to intimidate designers and illustrators with a “so sue me.” Once the small claims tribunal is up and running, Jay believes it will even deter copyright infringement.

This experience reinforces Jay’s support for The CASE Act, S 1273. The legislation would establish a small copyright claims tribunal, in which cases with a limited value of $15,000 and under could be heard expeditiously, inexpensively, and without ongoing legal counsel. That would permit small studios like hers take copyright infringers with deeper pockets to task. More importantly, it would remove an infringers’ ability to intimidate designers and illustrators with a “so sue me.” Once the small claims tribunal is up and running, Jay believes it will even deter copyright infringement.

Throughout her long career, Jay has seen her industry shift from hand-created mechanicals and illustration to a fully digital workflow. She’s also seen copyright infringement escalate to out-of-control proportions, and sketches are delivered to clients and artwork is posted in electronic form. As their art has become easier to steal –  for example, through a right-click off a portfolio website, or by forwarding sketches to suppliers – copyright infringers have been helping themselves to the work of illustrators and designers with impunity. For Jay, the CASE Act is long overdue.

*Designers typically do not transfer the copyrights of the logos they create to their clients until after their final invoice, including the sale of rights, has been paid.