Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[Designer]

Maybe there are some lawyers on this board that know the answer answer to this.

Let's say a company hires a graphic design agency to create their logo. If it turns out that the logo was derived or just flat out plagiarized from an already existing logo, can that company that purchased the logo get sued for copyright infringement? Or would only the graphic design agency that plagiarized and sold the design be sued?


Thanks.

[OMG IP]

Your real question is not whether you can be sued -- OF COURSE you can be sued!!  Instead, the question is whether you would have any liability.

Without knowing more here, I do not see why you wouldn't.  You definitely have knowledge.

[Designer]

This does not have anything to do with me or any clients I have designed logos for. Basically, I am writing an article for my blog about the potential legal consequences of acquiring a logo that was plagiarized even though they may not be aware of it. Theres the obvious cost of having to reprint all marketing materials, business cards, signage would have to be redone, the bad publicity... But would the company be open to legal action and have to pay fines for copyright infringement for using the logo. Would it be a case where ignorance is not a defense?

This all stems from a potential client that contacted me about a logo development project a few days ago. I sent a quote, got a response telling me that my fee is way too high and a link to a website this person found that does logo development for only $150. The problem was that when I checked out the link I found a bunch of logos that where either derivative of existing logos and others that were just flat out copied with only the names on the logos changed to suit their particular client.

[Kaitlin]

If you're going to put this on your blog, why not call some local solo or boutique firm TM or copyright attorney(s) to see if they'll give you a quote or two on the topic which you could use with attribution (or see of some of the forum's attorneys who provide their real names and practice details will give you a quote)?  If your blog has enough of a following--and even if not, they might be happy to do it and it would make your article more credible and authoritative.  What anonymous posts like mine tell you here could be totally wrong, for all you know.*

That said, OMG IP is right in making the point that people don't have to ultimately have liability in order to be sued. 

As to ultimate liability with regard to trademark law -- any liability in trademark will actually PRIMARILY be with the business USING the logo.  The standard for infringement is whether or not there is a likelihood of confusion as to the source of the goods.  If people are likely to think products/services bearing the purchased logo were related to the the company who had the original, copied logo -- even if only similar and not identical -- then there's infringement. 

If this is done innocently, that will mitigate penalties, BUT if the business purchasing the logo didn't bother to do a trademark search first, that works against any claim of innocence.  In any event, however, innocent or not, as you point out, the second user still won't be allowed to continue with use of the logo (unless they can get the party with priority to work out a deal as to a disclaimer or license). 

With regard to copyright, the person MAKING a copy is the one with primary liability for infringement, but if B hires A to make a copy for B, that definitely implicates B in contributory infringement. 

Am not well-versed enough in copyright to know without further research to what extent innocent possession and use of a copy made by someone else could lead to penalties, but here again the law takes a dim view of business people who shut their eyes and claim they didn't see the problem.

When it comes to whether or not someone did something "innocently", the law usually is concerned not with whether or not someone had "actual" knowledge of the wrongdoing, but whether they "knew, or should have known".  In other words, you can't say you "didn't know" if you failed to investigate where a normal, prudent business person would have investigated.

Best of luck to you.
K

--------------
*Note that while this site is meant to be a forum in which attorneys can discuss IP issues with colleagues, and has many attorney participants, regular participants include both attorneys and interested lay people -- some more knowledgeable than others.  No one has to show bar registration or demonstrate competence in IP law to participate.  While some attorneys do use their real names and provide links to their practices, so you have a means to verify their status, many others, like myself, participate anonymously.  So, e.g., while I am an attorney with over a decade experience in IP, you don't know if I'm lying when I say that.  The only way you can tell if I know what I'm talking about is by using what you learn from my post to do additional research into more authoritative sources and see if they agree with me.   

[Zonath]

Well, if you look at the actual copyright statutes (at Title 17, US Code, especially section 501: "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be."), you'll see that copyright infringement is a strict liability offense -- there's generally no intent element in copyright infringement.  Anyone who violates is an infringer of copyright.  Of course, a willful and knowing infringement can trigger some enhanced damages provisions, but even someone who makes or authorizes copies of copyrighted material in a good-faith, 'innocent' manner can be held liable.

What this means is that, for the purposes of the copyright law, the company that commissioned the plagiarized logo will sooner or later commit an act of infringement, even if they might not be held liable for the original act of infringement.  Obviously, the company isn't going to hide their logo away and never make any copies other than the one draft produced by the plagiarizing designer; they'll make and distribute thousands (if not millions) of business cards, print advertisements, and so on.  Once they start using the plagiarized mark in violation of the exclusive rights granted by sections 106-122 of the Copyright Act, they're liable.

A case you might find interest in is Bright Tunes Music v. Harrisongs Music, 420 F.Supp. 177 (1976), a somewhat similar lawsuit to do with George Harrison's supposed infringement of the song He's So Fine, where the judge found that Mr. Harrison might be held liable for copyright infringement, even though the judge specifically expressed the belief that the infringement was unintentional on the part of Mr. Harrison.  You'll also notice that the plaintiffs in the case sued not only Harrisongs Music, but also just about everyone else connected with the publication of the song, such as Apple Records and BMI.