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Gerald, Esq
Gerald, Esq, Lawyer
Category: Business Law
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Experience:  30 years of experience
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ILLINOIS - GRAPHIC DESIGN/ADS - INTELLECTUAL PROPERTY -

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ILLINOIS - GRAPHIC DESIGN/ADS - INTELLECTUAL PROPERTY - COPYRIGHT Forgive me for this being wordy, but I wanted to provide as much detail as possible.....For 8 years I worked for a 120+ page magazine as a W-2 employee. I solely created the layout, ads, etc. In 2009, I began to work for myself after a major falling out with the owner. I should have NEVER went back after the hell they put me through, but I had just had a baby and needed the money. This company begged me to work from home 3 months later after firing the freelancer.
I agreed to a monthly set price. We never had a contract. The magazine needed a new layout/size, all new ads, new website. I invoiced them separately (bare-bones $) for ad creation (We're 'poor' blah blah...Hey it's not my fault she didn't charge her clients at all for the ad creation!) I charged $10 for a 1/6 ad, $25 for full page ad...VERY CHEAP CREATION FEES...But I was paid an OK amount ($2300) for the layout each month, not to mention all the time spent sending to the printers, combining pdfs for Scribd, computer troubleshooting, website maintenance and all the other side-stuff I did.
It was continuous job security for me to keep them as a client. So charging beans for ad creation seemed plausible at the time. The owner of the magazine contacted me last month and said she wanted copies of all my working Quark files. When I asked her why she wanted them, she told me it was because she had access to InDesign and wanted to convert the files so she could try to help me build the magazine each month.
Something wasn't right! I figured she found somebody cheaper, which is FINE, but told her I retained the ownership of the ads. She became very heated and claimed she owned every aspect of what I created for her magazine because she paid me each month. I told her the new person needed to start from scratch and make their own ads or the owner could either continue paying a usage fee for the existing ads I created or she could buy the entire working archive for a set price. She declined both offers.
I relinquished everything they actually owned. All working files, ads, graphics, etc. PRIOR to 2009. PLUS I gave her the most recent Quark files (out of kindness) that of course retained the layout template, author headers, branding/logos that always belonged to her, etc. and a few ads that existed within the pages prior to 2009. A few times in the various folders, I included an ATTENTION note & contact info that read, "IF THERE COMES A TIME YOU SHOULD NEED AN AD THAT HAD PREVIOUSLY BEEN PLACED IN THIS MAGAZINE, CALL ME. IT MAY BE CHEAPER TO PAY A USAGE FEE RATHER THAN A RECREATION FEE."
I just picked up a copy of the most recent issue of the magazine. The new person took the pdfs from last month & used every single one of my ads. She has now listed herself on the masthead of the magazine as the 'ad creator'. I decided to call her to teach her about graphic design creed. She said she works from home for herself, yet considers the magazine owner her boss. This new person told me she will continue to do what 'her boss' tells her to do because she won't get paid for her time to recreate all the ads. I guess she means she will be staking claim to all my years of work.
Before hanging up, I told her it would be a good idea to educate herself about this stuff. I need some legal advice in Illinois here...(Besides telling me I should have had a contract...LESSON LEARNED THERE) There are so many years of garbage to discuss. I'm an idiot for sacrificing so much for that company out the sake of pure convenience. I want to be paid for my intentionally stolen work. The company makes a lot money & is continuing to make money off the ads I created by charging the clients their ad insertion fees. Plus the new person is taking complete notoriety for my work. I know I have a case right? WHAT A NIGHTMARE. :( Please point me to the light...
Submitted: 6 months ago.
Category: Business Law
Expert:  Gerald, Esq replied 6 months ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

You may or may not have a case against the company for copyright infringement depending on what your agreement was with the company. I know that you said that you did not have a written agreement. I am not trying to beat you up about it, but we need to discuss that part of the issue.

If you had a written agreement that specified who owned the rights to the underlying work the issue would be much simpler.

If you did not have those issues addressed in a written agreement the Company may claim that you provided the work on a "Work for Hire" basis. What muddies the waters even more is your generosity in providing the underlying working files. By doing so a court could see that as an acknowledgment on your part that your work was "Work for Hire."

Under "Work for Hire" arrangements the artist gives up their intellectual property interests to the person who purchases their work.

Without a written agreement specifying whether the work was "Work for Hire" or whether you kept the IP rights the matter becomes a he said/said she said case. This does NOT mean that you do not have a case against the company and against this other individual for infringing upon your copyright. It does mean that the case is much more complicated and uncertain than it would otherwise have been.

Your best bet right now is to meet with an Intellectual Property Attorney so assess your case and determine whether you have enough to bring an action. In bringing an action you may be able to force a satisfactory settlement in regard to the use of your work. Most attorneys who do this work will meet with you to assess your case at little initial cost. SO it is worth your while to at least meet with one.

Also you should speak with them about providing you a template agreement so that going forward you can protect your interests in your work with new clients.

This link can assist you in finding an attorney:

http://lawyers.findlaw.com/lawyer/practicestate/intellectual-property-law/illinois

I am sorry if some of what I relayed to you is NOT what you wanted to hear. But I would not want to mislead you into pursuing a course that is uncertain.

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

Please do not forget to give me a positive rating. It adds nothing to your costs but it helps me greatly. Thank you.

If you are dissatisfied with my response PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you and only ask the same from you.

Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

Expert:  Gerald, Esq replied 6 months ago.

Hello:

If you have follow up questions please note that I may not be able to respond until Monday. I will be offline with limited service.

If I can respond from my phone I will.

Kind regards,

Gerald

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