Intellectual Property Theft

• by gmashworth
• in Miscellaneous
• posted January 19, 2018

In common usage, theft is the taking of another person’s property or services without that person’s permission or consent with the intent to deprive the rightful owner of it.

Wikipedia

This is the common definition of theft, however theft seems to be open to interpretation when it involves the graphic design industry. For the most part those who procure graphic design services are fantastic and appreciative; I have many clients that can be described using those two words. However, there are companies/individuals that chose to deprived designers of payment and sadly, I was the victim of such abhorrent behaviour. Allow me to summarise my experience.

In September 2017 I submitted a brand proposal to an organisation based in New York. The proposal contained branding options for a new firm they were launching in Johannesburg. In November 2017 a senior representative of the Johannesburg firm informed me she would “facilitate payment”. However, in January 2018 I discovered they had used one of the logos contained within my proposal on their website! I had no idea they had made a decision and I had received no payment, so ultimately they did not have any ownerships rights or my permission to use any of the logos submitted. 

To most people I’m sure this seems very trivial and inconsequential. However, the organisations involved cannot be described as trivial or inconsequential entities. According to the New York firm’s website they have more than US$25 billion in committed capital. The Johannesburg firm plan to explore growth opportunities across Africa, seeking to invest in smaller sized companies with a minimum investment of US$1 million and cap of US$10 million. Both organisations have the capital to invest in the services they require, such as branding, but on this occasion they chose not to.

Below is a summary of the facts:

My fee was originally unchallenged: My quotation was sent and received in September 2017. Representatives of both organisations received my invoice in November 2017. I was informed by a senior representative that she would “facilitate payment”. Both my quotation and my invoice were accepted and unchallenged. There was no indication that either organisation had any reservations or second thoughts.

My artwork was unlawfully used: Whilst awaiting payment I discovered in January 2018 my artwork featured on both the Johannesburg firm’s website and LinkedIn page. The artwork was not paid for and was the intellectual property of Blue Zebra Creative; therefore the use of the artwork was a direct violation of my terms & conditions, which they had received with my quotation. I also include a disclaimer at the back of proposals in which it states any artwork should not be used or displayed within the public domain until full payment has been received.

My artwork was intentionally stolen: The artwork could only be obtained by improper means, as it was contained within a secure PDF document. The artwork was extracted from my proposal and manipulated; this can only be accomplished by a professional with knowledge of the relevant creative software. Clearly a representative from one of the companies (someone with questionable ethics) instructed a professional to effectively steal the logo from the proposal.

Silence speaks volumes: I have written to several members from the New York based company twice and not one recipient has engaged me in any form of dialogue, positive or otherwise. I did receive a ‘read receipt’ from one of the recipients and another automated notification informing me that another recipient (a key figure in this situation) had actually deleted my email without opening them. I feel their silence speaks volumes, its evasive and raises questions.

My only contact throughout this fiasco was with the CEO of the Johannesburg firm. After I had discovered the theft and unlawful use of my design, I immediately communicated with her and the response was…

It doesn’t refer to any discounts on your original fee as it is on the high side and we are unlikely to use the logo going forward”

This response did not address her promise to “investigate the matter” and makes no reference to the misdemeanour. I’m not sure what gave her the impression I would apply a discount and to say they “are unlikely to use the logo” after the fact they already used the logo is just idiotic. She later offered to pay 75% less than the amount I was owed, which I declined. I wanted full payment and in addition I wanted at least 50% of the fee by means of compensation for the misdemeanour. Her response was:

Given that the original assignment was not delivered as initially conceived and relations have since broken down and [name of company] is not going to use your design going forward, I do not see how we can resolve the matter as you suggest”

At this point I felt as though I was having this discussion with a committee. “The original assignment was not delivered as initially conceived” suggests they approved the assignment in the first place and I delivered a brand proposal that was accepted and evaluated. So how was the assignment not delivered? Those involved clearly recognised the utility value of the logo they stole regardless of duration of use. In addition to full payment surely there should be compensation for bad faith… maybe even an apology? I reiterated my terms and the response was:

The company has decided not to use the logo because it is too similar to that of another entity in the same line of business.

The only consistency throughout these discussions is the fact the organisation has taken the decision not to use the logo anymore, which wasn’t their decision to make. But now a reason for not using the logo has been disclosed, something that wasn’t disclosed previously. Sadly, I cannot corroborate her claim, as the entity they mentioned was not named. I suppose the irony is I did provide four options and had they conducted themselves appropriately, they could have selected one of the other three options.

I even tried to be objective and proposed a compromise in which I indicated I would accept full payment and no additional compensation, which was ignored. All I received from thereon was the same offer (50% of my fee) with the introduction of the words “WITHOUT PREDJUDICE” at the top of every communication. I do recognise that the firm involved has made an offer, albeit not a fair offer and therefore the outcome is very frustrating. I can’t get past the fact that I’m not fabricating any false accusations and the facts are irrefutable, yet they are reluctant to take any responsibility and do the right thing. Instead the situation has been manipulated so the perpetrator appears reasonable and the victim is being unreasonable.

The emotions felt throughout this episode have been unpleasant, which resulted in a strong sense of foolishness and failure. I invested hours/weeks on this project and the knowledge my work was a serious consideration to both a New York and Johannesburg based firms left me with a profound sense of achievement. I don’t post bad experiences with clients online, but I believe this incident deserves exposure. If an organisation of this magnitude can be so callous to a nonentity like me, how many other small businesses will they swindle? How far are they willing to go to get what they want?

Design is not my hobby and I’m not a tuck shop, this is my livelihood and I have every right to take it personally. How can someone unlawfully use my work, then retrospect and have the audacity to barter the price as though it was a sales pitch? I have every right to be upset; I have every right to post my concerns as a warning to others and I certainly have every right to demand my dues.

Some might argue this article is potentially crossing a line. I’m not the first designer to have his or her work stolen and I won’t be the last – but it has to stop. Individuals/organisations who knowingly do this are not potentially crossing a line, they have crossed it. Most designers can’t afford legal counsel and our only outlet is social media; I feel those who remain quiet and courteous towards their perpetrators are part of the problem. It is not within my interest to give respect and protect the reputation of individuals that claim to be diligent professional who have shown no remorse, no respect or consideration whatsoever toward me.

So when is theft considered theft?

In my case my property was taken without permission or legal right and by definition that means it was stolen. Yet someone representing these organisations knowingly committed this act without any consequences. The Johannesburg firm aims to raise funds to invest in African SME’s and yet they start this venture by deceiving an African SME. Even from a business standpoint it shows poor judgement. Isn’t my business the type of business they aim to help and develop? Ultimately, I would expect a professional in this situation to send an official response from an official email address issuing an apology. I would expect acknowledgement towards what has happened and some form of explanation. Any morsel of humility would go a long way. My work was evidently appreciated and viewed as the brand identity they wanted to use, so why not pay for it?

I put this out to the professional community. Am I being unreasonable? Am I right to post this article? Should I remove my posts from social media? Am I wrong for demanding full payment and compensation? Should I accept whatever sum they are prepared to offer? Every other client of mine respects my terms and abides by them, should I make an exception for a firm that has flouted these terms? Should we keep quiet and allow wealthy businesses to take advantage of small business owners?

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March 2018 update… I’ll let you draw your own conclusions.

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