Alumnus Sues NYU Over Logo That The School Asked Her To Design
from the did-I-miss-something dept
I'm trying to understand where the legal issue is here, but a "freelance artist" and alumnus of NYU is apparently suing the school because it used the bobcat mascot she designed. But here's the thing: she designed it while she was employed by the school's athletic director. In this case, she was just an equipment room clerk, but the associate director (a superior) asked her to create the mascot. And then the school used it. How is that possibly a copyright violation? She was employed by the school. Her boss asked her to do some work for the school. She did it. I'm having trouble understanding where there's a copyright violation.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, logo, nyu, work for hire
Reader Comments
Subscribe: RSS
View by: Time | Thread
Gray area, maybe, depending...
[ link to this | view in chronology ]
Re: Gray area, maybe, depending...
But hey! Lawyers are employed! Everybody Wins! (Where "everybody" is a subset of "lawyers.")
[ link to this | view in chronology ]
Re: Re: Gray area, maybe, depending...
From a legal standpoint, I think you're probably right. The "everything you do is ours" clauses that they include in the employment contracts of people who are specifically hired to create artworks are probably more of a precaution than a legal requirement.
However, think about this from the perspective of a regular person on the street. Not the "moron in a hurry", but a reasonably intelligent person who doesn't happen to be as aware of legal copyright issues like readers of Techdirt. From a purely moral standpoint, don't you think that what happened to this young woman would strike many as unfair? BTW, I'm not saying that it was unfair, just that the pool of people in a potential jury certainly might and that's why this case is going forward.
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending...
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending...
Oh gods. You're probably right, at least as far as the concept of "moral rights" has permeated the national consciousness.
Fuck you, Voltaire.
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending...
how is that fair?
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending...
how is that fair?
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending...
[ link to this | view in chronology ]
Re: Gray area, maybe, depending...
"She was paid to pick up dirty towels,"
This is only a guess, but I'd say that since her job description did not include anything about the creation of artwork and -- more importantly -- the standard "everything you do [create] is ours" clause wasn't in her employment contract, they believe they have a case.
If you work in an art department, sure, you're contract is probably going to include that kind of clause. But they probably didn't think that the employment contract of an "equipment room clerk" needed to include this kind of language.
[ link to this | view in chronology ]
Re: Re: Gray area, maybe, depending...
- What did she assume they were going to use it for?
- If she was only paid "to pick up dirty towels", then why was she spending their time creating new logos?
This could've been leveraged into a career. Instead, it might make people hesitant to hire her.
[ link to this | view in chronology ]
Re: Gray area, maybe, depending...
[ link to this | view in chronology ]
No subject
Do you not read your own articles? ;)
The new way to do business is as follows:
Do something, matters not if you're hired by a company or not.
Then, expect royalty payments for the remaining years alive simply because it was created and covered under copyright.
It's the American way!
Note: I think it's about time that ONE step be re-introduced regarding copyright and that's one must register the content to be covered.
This way, stupid crap like this ceases.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: Gray area, maybe, depending
[ link to this | view in chronology ]
Re: Re: Gray area, maybe, depending
[ link to this | view in chronology ]
Re: Re: Re: Gray area, maybe, depending
[ link to this | view in chronology ]
Re: Re: Gray area, maybe, depending
[ link to this | view in chronology ]
Damages
[ link to this | view in chronology ]
Just a hunch
[ link to this | view in chronology ]
2. Even if 1. is proven, i.e., that she was an employee, there is still no information to determine if preparing the logo was within the scope of her employment.
In order to prevail the school will be required to prove by a preponderance of the evidence that the individual was an "employee" and the logo was prepared "within the scope of her employment".
[ link to this | view in chronology ]
Re:
So, the collage is guilty until proven innocent? And, even if the woman has NO EVIDENCE they bilked her, she doesn't need it, becouse she filed the suit, not them?
Is this how perverse our legal system has become? When did we go to "Innocent, so prove a case" to "Guilty, unless you can show us why you shouldn't fry!"? I mean good gods man, do you even know the basic catchphrases of the legal system? Like the major one? We are not under Nepolianic law! (Well, unless you are in Louisiana, and even then the Innocent till Guilty trumps).
No wonder why Copyright Holders get to abuse the courts. They have perverted the very way America thinks, and they have triumphed in having laws unto themselves, in which they never have to prove guilt, they just have to prevent the other from speaking of innocence. NO! I say again, NO!
This thinking is a travesty, it is a horror. The founders weap openly from this statement. Lady Justice is killing herself with the blade. This is WRONG. How can you stand for it? How can anyone?
[ link to this | view in chronology ]
Re: Re:
The individual will need to prove two things to get things rolling. First, she will have to prove she actually created the drawing, something that is pretty simple to do. Second, she will have to present a copyright registration to the court in order that the court has jurisdiction to hear the case.
Having done this, the burden would then shift to the school to prove that she was an employee and that the work was created within the scope of her employment. Without this there would be no way for a court to determine if the work for hire provisions of copyright law even apply. Perhaps the school will be able to prove this, but were I a betting man my bet would not be on NYU. I have seen situations such as this arise more times than I can count, and in the majority of them the "employer" blew it...and badly.
[ link to this | view in chronology ]
Work done well beyond job function.
If she was an equipment room clerk, there probable was never a all your work belongs to us agreement, and even 'if' there was it probable wouldn't cover the creation of a logo for the university. Such an agreement would cover something like making an equipment list, or forms for checking in and out equipment but wouldn't cover a novel written at home.
Also, did they give her the supplies and the time to do the drawing? Or did she do it at home, on her own time, with her own equipment?
Even if its found that the university now owns the logo, they still might find themselves having to pay her as there is some protection from being grossly underpaid for work done. A 'graphics artist' is paid significantly more then an equipment room clerk making minimum wage.
[ link to this | view in chronology ]
Re: Work done well beyond job function.
[ link to this | view in chronology ]
Umm...
On a side note, this really is a gray area. As was noted above, if they had contracted a firm to design a logo they would have had to pay, so it seems like they might have tried to slip one under the rug here...
[ link to this | view in chronology ]
work for hire
[ link to this | view in chronology ]
work for hire?
And legal issues aside, corporations who demand spec work out of young artists are bloodsucking douchebags. NYU knows how much that kind of work costs and how much it's worth to them. They may be legally able to exploit one of their students to do it for free, but that doesn't make them any less exploitative and wrong.
[ link to this | view in chronology ]
Sadly, this has a greater chance of ruining her ability to get new jobs. I know I wouldn't hire a person who has a habit of suing employers....
[ link to this | view in chronology ]
depends what the job is
[ link to this | view in chronology ]
A friend of mine needs to hire fleelance artists on a regular basis and it's quite difficult to prevent copyright from taking effect. A simple "we own your creation" clause does not work. The freelance nature of the assignment means that everything they create is theirs, unless...
If you pay someone regular wages for a design job, it's probably the other way around.
She probably did this on her off-time and it was clearly not part of her usual job, so I can see how it could be argued she owns most of the copyright.
[ link to this | view in chronology ]
Simple solution...
[ link to this | view in chronology ]
We need MORE of these
Then people will finally wake up to just how stupid this is.
[ link to this | view in chronology ]
scenario plus horse and barn door
Director: Hey, your a pretty good artist do you think you could come up with a better mascot than the crappy one we've got now?
Her: Sure, I'll work on that, it will be great practice and maybe some day I can put it in a portfolio, plus I might be able to use this as credit for one of my art/design classes
sometime later...
Director, man that's a great drawing, it will look awsome on the Gym wall (or uniform or whatever)
Her: Yeah it is pretty good, I had fun doing it and the school will be better off
Sometime later after she meets some lawyers....
Her:COPYRIGHT!!!!! gimme $$$$$$$$!!!!!!
my point being that all across this country there are thousands of uncredited, unpaid artworks in schools and universities that are created by students as art projects, senior / class projects, out of civic pride, school pride or a sense of aesthetics (sp?). Why does she think that she is entitled to something special. If she thought her work was so great and she had put so much time into it that it was worth so much, she should have declared that prior to turning the work over and negotiated a payment at the time. After turning the work over and it goes in to use and is suddenly popular / valuable is too late. Sorr horse is gone, closing barn door now has no effect.
[ link to this | view in chronology ]
Re: scenario plus horse and barn door
It sounds like they never got back to her to let her know that they liked it, so they would discuss terms. They just ran with it. It really sounds like the school misunderstood the intent of her submission (because jocks and administrators just aren't artists).
So she contacted them and the jocks replied by saying, 'Nah, nah, nah, boo-boo. Deal with it.' and bristled about it, so now she's suing their smug asses. :)
[ link to this | view in chronology ]
School pride
At the time I was 12 years old... In no way shape or form could I have enter into a legal binding contract (up here in Canada you need to be 16 (I think) to enter a legal contract). Parents signed nothing.
Does that mean that I could sue them for illegal usage for the base X years?
[ link to this | view in chronology ]
Re: School pride
For this reason, I think it is an outrage -- an OUTRAGE! -- that the corporate CFOs regularly demand not only a salary, but BONUSES for their work!!! Where is the pride in knowing that their labor is going to a good cause?? ENOUGH of the greed, I say!
[ link to this | view in chronology ]
In essence, she made a poor decision and now wants to go back and get more money for it. Unfortunately, she did it in the wrong order, and should not be expected to be compensated after the fact because her price could have been rejected and NYU could have gone with a different designer that would have charged less or even done it for free for the publicity/experience/portfolio/pride. I'm sure there are hundreds of art students at NYU who would have done the design for free out of school spirit or simply to build a portfolio to get a design job when they graduated.
[ link to this | view in chronology ]
Re:
This isn't clear at all from the story. Being paid for the work means being paid for the time, and the equipment, used for the work.
"Now, it doesn't matter what her job description is, and if athletic artistic duties were not part of the job description she should have held her ground when asked to do the design and negotiate a freelance contract in addition to her employment contract that covered her creating the design."
Also not clear from the story. Depends on what was said. There could very well be a verbal contract. They ask, would you like to do a logo for NYU? She says, sure. Goes home and does it. The operative word is 'would'. Also, if she used her own equipment, then its implied that she was doing freelance work.
[ link to this | view in chronology ]
New York is an At Will Employment State
It does not matter if she was freelance or not. If her employer asked her to do the work, and she performed the work, and was compensated it was Work for Hire.
This applies to every field out there from shit sweeper to CEO
[ link to this | view in chronology ]
Re: New York is an At Will Employment State
In New York, can an employer really ask a bottom rung hourly employee to do any task whatsoever without further compensation?
Also, from the article it looks like she handed over the drawing for review, expecting there to be a conversation about how it would be used if they liked it. But there was no further conversation. That's legally fishy, but a major Univerity will probably get away with it. However it is unquestionably the work of untrustworthy scum who knew they could screw their overly trusting student worker.
[ link to this | view in chronology ]
Re: Re: New York is an At Will Employment State
If they receive their previously agreed upon hourly wage for the work, yes.
The employee can always refuse, based on job description, and open a dialog for further compensation. But by doing the work without renegotiating the employment contract or creating a new contract, the employee is essentially implicitly agreeing that the work is covered under the previous employment contract.
I'm a programmer, and if I were asked to do a website design for my company, the first thing I would say is "that's not what you hired me to do." Then, I would open talks for an additional contract that covers me working as a graphic designer in addition to my other duties. However, if they asked me to do a design and I just did it, then even though they hired me to program, my graphic design work is still covered under my original contract as a employee and the design is there's.
[ link to this | view in chronology ]
Re: Re: Re: New York is an At Will Employment State
Also, stepping back slightly from the labor law issues -- you have the professional experience and economic power to negotiate for further compensation. Hey, that's just great. Good for you!
But by your own example, the best interpretation is that NYU screwed over a 21 year old because she didn't have the professional experience to know any better.
To me, it seems like a major educational institution might want to explain the issues involved in these situations to the students who have come to them to learn, rather than jack them over for a relative pittance.
[ link to this | view in chronology ]
Re: Re: New York is an At Will Employment State
Her age also plays well with her story that she turned it in for review. If she is 22 now, then she as probable late 20s when she did the work. How many kids that age know to demand a written contract so they don't get exploited? Few and far between.
[ link to this | view in chronology ]
ehh?
The "everything is ours" is for those times when someone starts a side project, not for when you're told to do something.
To assume otherwise would allow situations like this
lets say you you're a receptionist. You write down the schedule for your boss in a your assigned schedule keeper which is a requirement of the job. Now you leave your job, can you claim that because you wrote down the contents of that book, that you own the book?
It was an expected function of the job, you can't claim you own it unless there was a separate agreement.
[ link to this | view in chronology ]
Re: ehh?
No, but not for the reason you think. No one can claim copyright on a schedule, since it's just a collection of facts and not a creative work. Find a better analogy.
[ link to this | view in chronology ]
Re: ehh?
"Work for hire!" says the boss, as he laughs and chomps on his cigar. You are fired and never work in this town again.
"Hooray!!" say the commentators on techdirt. "The boss owns everything!!"
"and someday, I will be the boss..." they whisper to themselves, rubbing their hands together.
[ link to this | view in chronology ]
Re: ehh?
Your talking about work done for hire, that is relevant to the job being done. If that same receptionist went home and painted masterpiece oil works and started to sell them they would be hers. Regardless of what her employment contract says.
As for a school logo. Her expected function was to pick up towels. Designing new logo's for sports teams is 'way' outside that job description.
[ link to this | view in chronology ]
suey,suey
[ link to this | view in chronology ]
Sadly, this commentary does not touch on this vital piece of information.
[ link to this | view in chronology ]
alumnus = singular masculine
:-) Sorry to nitpick
[ link to this | view in chronology ]
alumnus = singular masculine
:-) Sorry to nitpick
[ link to this | view in chronology ]
Without having the details on the school's side of the story, it sounds like they never got back to her to let her know that they liked it, so they would discuss terms. They just ran with it. It really sounds like the school misunderstood the intent of her submission (because jocks and administrators just aren't artists).
So she contacted them and the jocks replied by saying, 'Nah, nah, nah, boo-boo. Deal with it.' and bristled about it, so now she's suing their smug asses. :) Bad PR move for them. Probably they could have worked something out, like a nominal fee and credit.
[ link to this | view in chronology ]
Numbers
And if you take a digital picture, it's just a bunch of numbers
anyway, what you're saying is if someone is creative in the work they're assigned, like using a multi colored pen, then it's ok to claim copy right?
feel the sarcasm?
[ link to this | view in chronology ]
Re: Numbers
And if you can convince a jury that creative work done by a student worker on their own time with their own equipment is not actually their work because a coach asked for it, then you may be clever. But you're also an oozing sore.
[ link to this | view in chronology ]
So is cleaning my desk at work
I didn't see anything in my job description for cleaning my desk, yet it's expected. If you don't want to do something in your job description say no and take it up in court if you feel you've been unfairly fired OOOORRRRR, tell them you want to retain ownership of your work.
[ link to this | view in chronology ]
Re: So is cleaning my desk at work
Maybe you missed the subject of the article...
[ link to this | view in chronology ]
We got a winner
^^^
She didn't willingly hand it over for production use. no different than someone for their opinion and they take off with your work
ma'b I should've RTFM, but I'm at work and only have time to glance at stuff while waiting for things to run
[ link to this | view in chronology ]
[ link to this | view in chronology ]
"Hooray!!" say the commentators on techdirt. "The boss owns everything!!"
"and someday, I will be the boss..." they whisper to themselves, rubbing their hands together."
--------
LOL
[ link to this | view in chronology ]