Consider the situations:
- when the customer can and when cannot remove the artist's logo from the site design;
- when the designer can demand to prohibit the customer from using his design;
- when the designer can demand additional money to the salary already received or to the money under a civil law contract;
- Is it possible to upload work to the portfolio of a web studio, to the direct performer - a designer.
Here we will analyze the problems using the example of website design, but everything that has been said applies equally to the layout, and to the software part, and to applications and other products that fall under Chapter 70 of the Civil Code of the Russian Federation Copyright. In practice, the design of the site differs most from the film. At the end of the film, there are credits, which list all its creators, that is, their right to name and authorship is realized in accordance with Art. 1265 of the Civil Code of the Russian Federation. When the movie “Too Free Man” was filmed, I was surprised that they asked me to sign a written consent to use my small video and even mentioned it in the credits. A different practice has developed with website design, although the laws are still the same.
The scheme of interaction for the development of site design in the most general form:
Customer → Contractor → Subcontractor → Direct designer.
At the same time, there may be several more subcontractors in the chain of the scheme, and there may be many direct designers (according to article 1258 of the Civil Code of the Russian Federation, they will all be co-authors). By themselves, these facts do not affect the implementation of the law by individual links in the chain, but the documents, which will be discussed below, must be signed along the entire chain. If at least somewhere there is a gap, then the remaining participants on one side of such a gap will lose their rights, and the participants on the other side will, on the contrary, gain.
With co-authorship in accordance with Article 1258 of the Civil Code of the Russian Federation: "In the event that such a work forms an inseparable whole, none of the co-authors has the right to prohibit the use of such a work without sufficient grounds." But there is no explanation of what “sufficient reasons” are. And it may be sufficient that one of the co-authors did not receive the remuneration required by law. This will be important below when analyzing specific situations.
It should be understood that in its simplest form, the relationship can look like this:
Customer → Direct designer.
Does the customer have the right to remove the artist's logo from the design of his site?
Consider the case when the contract does not say about the mandatory placement of the developer's logo on the site.
On the Internet, you can find a video that says yes, if the developer of the site is a legal entity, since the author, according to Art. 1265 of the Civil Code of the Russian Federation can only be an individual. However, the site is a complex subject. As complex objects in paragraph 1 of Art. 1240 defines both a multimedia product and a database, in fact, this is the site. And in the same paragraph, the person who created the complex object is already mentioned, that is, this is any person, including a legal entity. In paragraph 4. of Art. 1240 of the Civil Code of the Russian Federation says: "When using the result of intellectual activity as part of a complex object, the person who organized the creation of this object has the right to indicate his name or name or demand such an indication." That is, a web studio that has created a complex website object has the right to indicate its name and demand. In paragraph 1 of Art. 1251. Protection of personal non-property rights is said,that “In the event of a violation of the author's personal non-property rights, their protection is carried out, in particular, by recognizing the right, restoring the situation that existed before the violation of the right, suppressing actions that violate the right or create a threat of its violation, compensation for moral damage, publication of the court decision on the violation. " And in the same place in paragraph 2, that the provisions of paragraph 1 apply to the protection of the rights provided for in paragraph 4. Art. 1240. Thus, by default, the Customer cannot remove the name of the developer of the legal entity. And if it removes it without permission, then at best the court will have to oblige to restore, and at worst to stop the actions, that is, prohibit the use of the site without the developer's name.that existed before the violation of the right, suppression of actions that violate the right or create a threat of its violation, compensation for moral damage, publication of the court decision on the violation. " And in the same place in paragraph 2, that the provisions of paragraph 1 apply to the protection of the rights provided for in paragraph 4. Art. 1240. Thus, the Customer cannot by default remove the name of the developer of the legal entity. And if it removes it without permission, then at best the court will have to oblige to restore, and at worst to stop the actions, that is, prohibit the use of the site without the developer's name.that existed before the violation of the right, suppression of actions that violate the right or create a threat of its violation, compensation for moral damage, publication of the court decision on the violation. " And in the same place in paragraph 2, that the provisions of paragraph 1 apply to the protection of the rights provided for in paragraph 4. Art. 1240. Thus, the Customer cannot by default remove the name of the developer of the legal entity. And if it removes it without permission, then at best the court will have to oblige to restore, and at worst to stop the actions, that is, prohibit the use of the site without the developer's name.Thus, by default, the Customer cannot remove the name of the developer of the legal entity. And if he arbitrarily removes it, then at best the court will have to oblige to restore, and at worst to stop the actions, that is, prohibit the use of the site without the developer's name.Thus, by default, the Customer cannot remove the name of the developer of the legal entity. And if it removes it without permission, then at best the court will have to oblige to restore, and at worst to stop the actions, that is, prohibit the use of the site without the developer's name.
In this case, the customer will be able to remove the hyperlink to the developer's website, and replace the logo with the developer's name.
If the contract does not stipulate the right of the performer to the logo, but the graphic design of the site is signed with the logo of the web studio, then most likely the web studio did not give written consent to change the design. In this case, Article 1266 of the Civil Code of the Russian Federation “The right to inviolability of a work and protection of a work from distortion” applies. That is, the customer cannot make any changes to the design at all - even add something needed. Actually, that is why the article is called: "The Terror of Copyright ..." This opens up an untapped field for legal proceedings. On the side of the author will be Art. 1266 of the Civil Code of the Russian Federation, and on the side of the customer, Art. 10 of the Civil Code of the Russian Federation. It is clear that if such a lawsuit is filed, it is unlikely that you will sue a lot, but you can spoil your life, although the reputation of such a designer will also suffer. But if he is an individual or an unknown studio,it is unlikely that this will interfere with his new orders. With low-budget orders, customers do not break through small-scale contractors.
From the above, it can be seen that if the customer, when concluding the contract, requires simply removing the clause on the placement of the developer's logo, then the developer may still later require to indicate his name.
If the developer of the site is an individual, then the right to authorship and name is already directly protected by Art. 1265 of the Civil Code of the Russian Federation.
Please note that until now we have never said anything about the exclusive right (Article 1270 of the Civil Code of the Russian Federation). That is, even if the customer has the exclusive right to the design, it does not give him the right to publish it without attribution and make changes to it.
It should be remembered that if the question concerns not a complex object, but for example the design of a poster, then Article 1265 paragraph 1 (the right to authorship and the right to a name) does not apply to legal entities, since according to Article 1257 a citizen is recognized as the author of the work ... And therefore, on the poster, a legal entity will not be able to demand that its name be indicated by default.
If the agreement specifies the placement of the developer's logo with an active hyperlink, then the customer has no right to remove either the logo or the hyperlink. Of course, he can remove the expectation that the performer will not go to court. It is unlikely that it will be possible to prove in court that this caused tangible harm, to prove damages, but the court will oblige to restore the logo. And then the customer will have to either restore or order a new design.
When can a customer use a site without the artist's logo?
If the contract or an additional agreement with the contractor states that the contractor allows the customer to use the site design without specifying the name of the contractor.
How can a customer obtain exclusive rights
The customer also needs exclusive rights to be able to use the design of this site on other sites, applications, and printed materials. By default, exclusive rights are not transferred. Exclusive rights can be obtained:
- through the author's order agreement (Articles 1288, 1291 of the Civil Code of the Russian Federation);
- through an employment contract (Article 1295 of the Civil Code of the Russian Federation);
- through an agreement on the alienation of exclusive rights (Art. 1234 of the Civil Code of the Russian Federation);
- by inheritance of Art. 1283 of the Civil Code of the Russian Federation and so on are no longer our cases.
It is important that in all cases this happens in writing.
If the customer simply has a contract for the provision of services, where the transfer of exclusive rights is not clearly spelled out, then the exclusive rights by default remain with the contractor in accordance with Art. 1288 of the Civil Code of the Russian Federation. This rule of law is generally strange. Common sense says that exclusive rights should belong by default to the one at whose expense the copyright object was created.
It is also very important that a fee must be paid for exclusive rights. And this reward must be substantial. The law, of course, does not set the bottom line. But if exclusive rights were bought for one penny, then somehow this raises doubts, but whether such a deal was really concluded voluntarily, and not due to delusions, compulsions, circumstances (Articles 178, 179 of the Civil Code of the Russian Federation). And then the designer will say that he was asked to sign under threat of dismissal or with an explanation that he receives a salary for this, but did not explain that the royalties according to Art. 1295 of the Civil Code of the Russian Federation is paid independently and separately from the salary under the employment contract. Thus, the author demands to return the exclusive copyright back to him in exchange for the received penny.
So, what a customer needs to have complete freedom of action:
- permission to use the design without specifying the artist's name;
- lack of a signed design layout with the artist's logo;
- the consent of the designer (direct author) to make changes (Article 1266 of the Civil Code of the Russian Federation);
- the designer's permission to publish his work without attribution (Art. 1265 of the Civil Code of the Russian Federation);
- obtaining exclusive rights to design from all participants in the chain (Articles 1288, 1295, 1234 of the Civil Code of the Russian Federation).
Does the designer have the right to indicate his authorship on the design?
Has according to Art. 1265 of the Civil Code of the Russian Federation. This right is independent of the transfer of exclusive design rights. The designer can waive this right only voluntarily, having allowed in writing not to indicate its authorship.
Does a designer have the right to place a work in his portfolio, resume or behance?
Has the full right to post full source codes and originals of his work, if he did not transfer exclusive rights (Articles 1288, 1295, 1234 of the Civil Code of the Russian Federation).
Has a limited right if he transferred exclusive rights and did not sign a nondisclosure agreement. You can take a screenshot of the site. Source codes cannot be published. You can publish the cover of the book, the title of the work with an indication of its authorship, but you cannot publish the book itself and the work itself in full.
If you transferred exclusive rights and signed a non-disclosure agreement, then you can publish a screenshot and indicate your authorship, but you will have to pay for a violation of the non-disclosure agreement.
What does a designer need to start a legal terror
You will say that only bad people do this and it should not be so. However, take a look at Case # 2-289 / 2014, where a photographer, having received money for his work, tried to warm up the customer again. The court denied him his claims, but the customer did not receive exclusive rights. Well, we must remember that we do not have case law. Under exactly the same circumstances, the court's decision may be in favor of the right-wing terrorist. The court can also side with him. They say photos, you can hang them on the wall at home, and pay copyright for use in advertising.
So, in order for a designer to sue and get additional money to the money already received, you need:
- not to transfer exclusive rights (Articles 1288, 1295, 1234 of the Civil Code of the Russian Federation);
- transfer exclusive rights, but without remuneration;
- do not sign an NDA;
- not to give written consent to the publication of your work without attribution (Art. 1265 of the Civil Code of the Russian Federation), most of the designers do not give such consent;
- do not give their consent to change the design (Art. 1266 of the Civil Code of the Russian Federation), again the majority do not.
Does a web studio (legal entity) have the right to indicate its logo on the design?
Yes, if the contract does not stipulate that the contractor allows the use of the design without specifying the contractor.
An artist's logo without a link can be required if there is a signed design with this logo and there is no consent of the direct artist to make changes.
Does a web studio (legal entity) have the right to place a work in the portfolio or behance?
Has the full right to place the full source codes and originals of his work if he owns exclusive rights (Articles 1288, 1295, 1234 of the Civil Code of the Russian Federation). That is, the web studio legal entity formalized the transfer of exclusive rights from employees or contractors, and the web studio did not transfer these rights to the customer. An unlikely story when the customer is a mug, and the web studio is cunning.
Has a limited right if she has transferred exclusive rights and has not signed a nondisclosure agreement. You can take a screenshot of the site. Source codes cannot be published. You can publish the cover of the book, the title of the work with an indication of your authorship, but you cannot publish the book itself and the work itself in full.
If you transferred exclusive rights and signed a non-disclosure agreement and the fact of the design was not publicly disclosed, then you can publish a screenshot and indicate your authorship, but you will have to pay dearly according to the agreement. Well, they will demand to be removed through the courts.
What web studios need to protect their rights
- the customer's obligation in the contract to keep the performer's logo with an active hyperlink;
- signed mockup of the design with the artist's logo;
- the designer's consent to make changes (Article 1266 of the Civil Code of the Russian Federation);
- the designer's permission to publish his work without attribution (Article 1265 of the Civil Code of the Russian Federation)
- obtaining exclusive rights to design from all participants in the chain (Articles 1288, 1295, 1234 of the Civil Code of the Russian Federation)
- pay a fee to the designer for the transfer of exclusive rights;
- not to transfer exclusive rights to the customer, but this is disgusting, you need to transfer;
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Ideally, for all cooperation to take place through EDF, all contracts, acts, agreements, tasks, the results of the provision of services would be signed by an EDS. We will come to this. While many are resisting. Although this pleasure costs only 2900r for a year. We have long been connected to EDM, but there are still customers and subcontractors who are not there. By the way, freelancers: designers and project managers, if you are an individual entrepreneur, work remotely and are connected to EDF, then our vacancies will be especially glad to you.
Samples of our agreement for the creation of a website and an act on the transfer of exclusive rights .