Sunday, September 20, 2009

Assignees and (C) or (TM) infringement

My sister (Yutta Sterenborg) is now getting into the business of "signmaking". So for all your T-shirts and commercial advertisement on e.g. windows, cars go to her homepage: www.yutta-style.nl. Due to that I have been thinking about infringement action by assistent parties.

Creating and developing T-shirts, car stickers, commercial window covers for restaurants, etc, is her main task. The assignments she gets often seems like an action infringing copyright or trademark laws. When she is using a logo with permission from the one who owns the logo, there is no problem whatsoever, like here:
















When she is copying a logo from a trademark owner that is not the assignment giving person. Who is liable for the infringing action: Should the assigment giving person be the only one that can be held liable in court for an infringing action Could the one reproducing the trademark or copyrighted work held liable? Or is the reproducing person only a tool to infringe? Is there automatically a rule that says that the assignment giving person is liable for his actions?

In other words: What is her position?


In my view this could be settled with the use of general terms of agreement. Though in the signmaking business it is not quite a settled practice to hand over the general terms of agreement before or upon an agreement is reached. There is often only an oral agreement:

Assignment giving person: "Could you create a T-shirt that says: "All men are like wine, the older they get the better they become". Assignee: "Yes, I can..." and within 3 minutes a T-shirt seize, color, print is created and customly made for the individual.

But since the person giving the assignment (in the end) profits from the work created, in my view the assisting person is not to be held liable. There is often not much of credit for the person who created the tool for the assignment giving person. There are often more benefits/credits for the one who wears, drives or run a shop with a commercial window cover.

According to the law the assignment also ends upon delivery of a good product/service. After this there is no legal relationship left, unless there is something fundamentally wrong with the product or service, and as one might expect and ask for a repair (not being an copyright or trademark infringement).

Basically in my view, the assignee ceases to have any liability, when the custom-made good or product is delivered. During the time the assignment is not yet full-filled the assignement giving person could always refuse to accept the result. And in most of the cases, there is nothing made public yet and no infringement took place. Due to the fact that the assignement giving person accepts the product or service, he/she also receives the liability for the product or service.

The relationship between the two (assignment giver and assignee) should govern the legal infringement. And in my view the assignee should be protected in this matter, since the assignment giver profits from the work and paid (probably) a minimal lump sum compared to the possible legal infringment cost the assignee otherwise faces.

When the assignment giver explicitly pays a lot more, one could expect that the assignee took over the liability for infringement. Though an assignee might not be competitive enough if he/she does that and will not get any assignments.

But it really depends on the circumstances of each case. It should all be judged upon the own merit of the case.
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All pictures are used under the exception of "Quotation", the copyright lies in the hands of Yutta Sterenborg (my sister) and can be seen on www.yuttastyle.nl/page6.html.




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