“Multinational company plagiarises the little guy’s work, shocker”

Turns out a mahoosive company has used, copied and slightly adapted the copywritten work of my little company.

I am one of two blokes in a micro-company working from our respective home-offices. We lost out to a major global player in a tender, and it turns out that same global player has used our old artwork from 2014 to fulfil the contract we didn’t win. Our work has clearly been used and copied – it’s identical in places.

First time (we know of) that it’s happened. Apart from being really pee’d-off, is there anything we can do?

Not a lawyer, but I’d just send them an invoice. No waffle, just a list of the artwork used and a reasonable price for the use in this one instance. Find the address for accounts and send it over.

I’d suspect your beef is more with the client than the competing company – you’d have submitted your copy etc to them as part of the tender – not to the other company. So it would seem more likely that your copy was passed on by the client. So the client has taken material giving to them in confidence and passed it on to a third party.

IANAL – but I’ve dealt with a few issues like this. First thing to beware of is that the burden of proof is on you to show they have infringed your rights. Next thing to realise is that you can spend a lot of time on a fruitless path to perhaps being right meanwhile you are not doing the day job / normal business so every hour you spend shouting about it is costing you money. Often a better (but less personally satisfying) use of your time is clarfiying/bolstering/reinforcing the rights – e.g. updating client T&Cs, ensuring staff T&Cs are clear, ensuring when work/files are handed over to a client it is accompanied by appropriate ownership/license statements, watermarking of online versions of files etc…

You don’t say enough to understand how this has happened. You want to make sure you target any response appropriately, e.g. is it the global player, or the customer of the global player who is at fault (its also worth being absolutely sure that they are at fault – e.g. there were no T&Cs in the original work that allowed derivates or assign the rights to the customer, or worse no (or completely irrelevant T&Cs) which might leave some implied rights etc).

Before you spend any money on a lawyer ask yourself three questions:
1. What would be a good / satisfactory outcome (e.g. to add an acknowledgement to the work, a small(?) license fee, an apology, them to remove the work an redo it, the customer to fire the big corporate, etc).
2. If they don’t act how you want, what will you do about it? e.g. court action, twitter campaign, etc – and how could that backfire.
3. How to tone / position so that you are most likely to get what you want. A really stroppy letter from a small lawyer representing a small 2 person company may not even get a response!

Having a clear position on 1,2,3 above will save you an hour or two of legal fees and actually might mean you decide to do nothing or that an informal response is better (I’d always discuss with a lawyer though – you don’t want to make matters worse and end up with a counter-threat).

Not a copyright lawyer (I am a patent attorney, but copyright is a completely different area). Poly’s advice sounds pretty good. Enforcing a copyright claim via the courts is going to be an inordinately expensive nightmare, so finding another option is good. They’re more likely to be worried about reputational harm that anything. Speak to a lawyer (one who is a specialist in copyright law – not a general lawyer who pretends to know about this stuff) as you don’t want to get into trouble for making unjustified threats.

Thanks, Poly. That’s extremely useful.

Essentially, we’ve done the mapping work for a major local authority for many years. Last year they put the Updating of these maps out to tender and we lost. Which is fair enough.

But the old client must have passed our old print-ready artwork onto the tender-winner to update for them. Now you can’t really physically edit or change print-ready artwork, but you can selectively copy/paste stuff from it. And they have copied/pasted A LOT of ‘stuff’ off of it and into their new design files. They have even copied our mistakes (think Trap Streets). Sure they’ve changed the odd colour and symbol here and there, but essentially, they are still our maps: our styles that we’ve used and developed over the years, and data that we’ve manipulated our way. The ‘design’ is ours. Yet the new smallprint and copyright details credit the new supplier – the major player.

I’ll give the old client the benefit of the doubt and say they probably didn’t know that passing-on our old artwork like that was wrong. But the major player really should know better than to use someone else’s work in this manner.

It wasn’t a huge contract (c.£10k) but the major player who won the tender by undercutting us probably have roomfuls of unpaid interns doing this copy/pasting/updating work, meaning they can charge a lot less than we do. Meanwhile, two guys eking out an honest living from their respective back bedrooms have lost out.

Well I guess I am a copyright lawyer, or at least a retired one, though I taught rather than practised for the last part of my career, but…

Check your ownership of the copyright. I can’t quite work out whether this artwork was prepared by you for the bid, or in the course of your previous contract? If the latter – you need to look at the terms of your previous contract. Did it assign copyright in the work you did to the Council, or just give them a licence to use it? If they own copyright in the work you did, or have a licence that continues, obviously you can’t complain about copyright infringement. If they don’t have rights somehow, then either you (individuals) or your company own the copyright and can enforce it – the distinction may not matter, but you would need to nail it down (are you employees or directors/shareholders/partners without a contract of employment).

There is also the question of moral rights, which gets a bit more complicated. These only belong to individual creators and the most relevant one here is the right to be attributed as author of a work. It cannot be assigned but can be waived (eg in a contract). If I had been drafting your contract on behalf of the local authority I would have considered myself negligent not to include a moral rights waiver in the terms (subject to express instructions), but you never know. Again, look at your old contract.

Finally, there is the false attribution of copyright to the new supplier. The only right you* have in relation to this is so-called “reverse passing-off”. The leading case (though I have been out of the loop for a few years) involves actually using photographs of someone else’s work to sell your own business (ie saying to potential customers “I did that” when you didn’t) – you can pretty much work out the story from the leading case title: Bristol Conservatories vs Conservatories Custom Built. My Google-fu has failed me, I can’t find a link to a non-paywalled version of the judgment. More detail would be needed to stand such a claim up in your case, as I understand it your work was not used to get the contract, but presumably the work will be seen by potential future customers of theirs. For the purposes of naming and shaming the big bad competitor and appealing to the Council’s sense of fair play that may be enough. It would be an “interesting” case, as they say, so only for the deep of pocket to pursue further.

*There is actually a moral right not to be falsely attributed as author, but you haven’t been, they have (and presumably they are cool about it).

Hey thanks, greyspoke. I may drop you a DM if that’s OK?

Check your ownership of the copyright.

Indeed –  its your work from a prvuius  tender, not the current  tender thats in question. I’d be surprised if a contract like this – with a local authority – doesn’t result in the copyright for the work commissioned going to the client rather than remaining with the contractor. So you need to look out that original tender document.

No probs @Thurman

I’d be surprised if a contract like this – with a local authority – doesn’t result in the copyright for the work commissioned going to the client rather than remaining with the contractor. So you need to look out that original tender document.

I work in written content rather than maps, but this is the way I was thinking.

Work I delivered would usually become the copyright of the client, including designs. If these were modified and updated by a new supplier, that wouldn’t be an issue.

But it depends what your contract says and what the norm is in your sector?

Thurman, interesting – I’ve never been involved in anything acrimonious around maps, but I have been involved in paying for mapping a few times and my opinion is that whilst people in that industry throw around terms about copyright they don’t really seem to understand them properly. Did you use any source data which was itself copyright (e.g. OS or OSM data?) and have you dealt with the licensing to the local authority or was the local authority responsible for its own Crown Copyright license etc? That might not be material but it feels like the sort of thing that should be crystal clear before getting stroppy. I also seem to recall that maps may also have both database rights and design rights and the ownership of these is not automatically the same as copyright.

The good news is that the client is a local authority who often are more likely to be keen to do the right thing than private enterprise, and you may be able to obtain some information about who knew/said what under freedom of information. The bad news is that even when you find someone who admits to doing something wrong – finding the person who has the budget to put it right may not be easy, so unless the money really matters – resolutions which don’t involve spending cash are likely to be easier! Whilst I understand why you feel bitter about your competitor because they “should know”, I wouldn’t be surprised if somewhere in their T&Cs there’s an indemnity from the LA saying they have the rights to any background IP they have been asked to update.

maps may also have both database rights and design rights and the ownership of these is not automatically the same as copyright.

Interesting. I think this is the nub of the matter. As far as we are concerned, while the source/supplier of the data has to be strictly and correctly attributed and credited on the map (and the data remains the copyright of the data supplier), the work done by the cartographer/designer in styling all that ‘raw’ data up and making it look pretty remains the copyright of the cartographer/designer, not the client. The client owns the finished map we made for them, not the styles we used, symbols we devised and choice of font we made. The major player has copied our styles and symbols to make their ‘new’ maps. And literally copy/pasted our road- and route-networks and road names into their design files. It overlays perfectly. Like I say, they’ve even copied our mistakes.

the client is a local authority who often are more likely to be keen to do the right thing than private enterprise

In our experience (and it is extensive) LAs are exceptionally good clients. Luckily, it’s who we deal with the most. I think if they knew that their new supplier saved themselves a ton of work by simply ripping-off their previous supplier’s work, they’d be horrified. Unless, of course, they were complicit…

I should add that this situation has never (to my knowledge!) arisen before. I guess it’s the highest form flattery…