Legal issues and a Portfolio...

Hey guys,

I was recently emailed by the owner from Warbird Brewing Company asking me to take down the following site off of my freelance group's portfolio...

www.rogue-effect.com/clients/warbird

The site serves only one purpose: to display my graphical capabilities. I am in no way endorsing, supporting, or (not any more) proposing this site to Warbird or any of their affiliates. It was simply a design mock up for a failed contest at Sitepoint (in which NO winner was chosen). So...Instead of wasting a piece that a lot of people liked, I decided to put it into my portfolio.

Here is the quoted email...

Webmaster: Please take down the web page which is a reference to Warbird Brewing Company as a client. You have apparently published this design concept page, but it lists us a client, which is not true. This is potentially confusing to our customers. Thanks for removing it from public view. You look like you do nice work. I will be happy to refer you to anyone who asks me for a good web developer. I’ll bookmark your home page. Thank you for fixing this promptly.

I thought that he was wrong and a little uptight for asking me to do this. No content holder, or potential client have I ever drawn up a mock up for be so anal about displaying the work.

To that email I responded with:

Dave, Though I understand your concern, I feel I am in no violation. The Rogue Effect site is merely a temporary portfolio showing off my graphic capabilities. There is a small description of the site, but says nothing about the site being launched nor does it say anything about you being an actual client. It says mock up and concept. Live sites are directly linked to our live client sites. I will be willing to reword the description to make it extra clear that you were not a client, and that it was merely a proposed concept. However, the site is my property, and I have every right according to the DMCA (Digital Millenium Copyright Act) to display my work accordingly as long as it is properly described. Many designers, firms, and agencies make mock up proposals to corporations every day in hopes that their design will be chosen. They are more or less "bidding" for the job and present concepts. These concepts, chosen or not, as still placed on their portfolios - though many don't if it isn't chosen simply for sake of pride (they don't want to show a failed concept). Thanks, Bryan

I understand that the DMCA gives me no inherit right to display my work as I said above. I was simply giving a false arguement trying to just end it right then and there. (I understand that can be treading in deep water, but the wording on the DMCA , " States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..." seems that I am able to use the site for fair use - which is, obviously, what is at stake in this debate.

With a little more persistence, Dave, the owner of Warbird Brewing states the following in an email:

Bryan: I agree that you have a right to display your work and your site is your property. However, according to US trademark law, if you are illegally using my copyrighted images, which are protected by my trademark and registration with the federal government, that is what you should be worried about. I have no problem with you making a proposed site for a client. However, you may not use the word Warbird, Beer, or brewing in your proposed site without my permission. You do not have my permission. That is in violation of US trademark law. This is not about freedom in the digital world. This is about well-established trademark law and it is intended to protect brands like the one I am building. If you really don’t understand this, then you might end up learning a harsh legal lesson that has nothing to do with whatever digital freedom laws that you well understand. I hope I have convinced you that your “re-branding” of my brand is not acceptable. Neither you nor I really want any trouble. I would again ask that you remove this “proposed site” and let the rest of your work stand on its own. You do nice work, I would encourage you to run your business in as elegant a fashion. Really, becoming defiant with business owners out there in the world where you provide service is not in your best interest. So, again, I am asking politely for you to take this down. Thank you. Dave

And with that, I have decided to pull down the site temporarily until I find a clearer response from everyone else to make sure that he is indeed allowed to do that.

I do believe him, and believe that I could have stirred the hornet's nest, so before anything happens, I am forfieting my right to display the work.

What do you guys think?