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?

I, personally, have not seen the design...

Keep in mind, that I am no lawyer.
There are some truths to it, if you used their logo, that would technically be copyright infringement, unless you got specific consent from the owner (seems you haven't, in this case). As far as not being able to say "beer" or "brewing" that is completely wrong. As long as you have nothing left in your design that could be tied back to "warbird", I do not forsee a problem with that.
Although, in this situation, technically, he is in the right.

In the description of the work, did you mention that the design is using their logo?

Originally Posted by oneimedia 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... 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: 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: 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?

Change Client to "Nonprofit Example"

LOL you can use the words "beer" and "brewing" all you want. Just not the company name or logo. Replace or remove them, and the rest of the design is free to be used in your portfolio as you please. Since they didn't buy the rights, you own the design copyright. If he still complains, tell him you're honoring and respecting his trademarks, that general words like beer and brewing cannot be trademarked legally, and you would appreciate if he would kindly return the favor by respecting your copyright to the design, especially considering that you essentially did this mockup on spec by their request as they posted the contest. I'm in the middle of running a logo contest now here on TF. I can understand if someone used a design I didn't choose and made it sound like it was used by me or said I was a client, but I would never ask them to remove it from their portfolio. I don't even see any harm in letting them keep the name there, unless it were entirely shoddy work, which none of the particular submissions have been. It just sounds like the guy is being a bit overprotective of some rights he doesn't even have. Nice try though, trying to say he owns the trademark for "beer." That's a riot!

Originally Posted by jhmattern Nice try though, trying to say he owns the trademark for "beer." That's a riot!

You will be receiving an email very shortly. you said b**r

Have you progressed with this any farther Bryan?

We went out for drinks tonite and at least 3 of the waitresses and many of my group said beer. Maybe we're next?

Jenn is right. This guy is just trying to scare you. Tell him you'll drop beer and brewing when Miller, Sam Adams and Anheuser Busch do it.

Originally Posted by oneimedia I hope I have convinced you that your “re-branding” of my brand is not acceptable.

you changed / didn't use his logo didn't you?

If the logo use was allowed in the contest and he gave permissions for this, then he also has no rights to ask you to remove this as well. He would have to have given very specific permissions for the logo use if he wants you to remove it. He'd have had clauses like "The logo is provided for use by the contestants, but is subject to removal once the competition closes, unless specifically stated otherwise.". If he simply said "use our logo, it's located here" and nothing else, then he gave away his rights.

Also you should let him know that he is getting free advertising, especially if you are getting search hits for his keywords.

But the main piece of advice for you is I recommend you hire a patents/trademarks attorney.

Originally Posted by Julian But the main piece of advice for you is I recommend you hire a patents/trademarks attorney.

Not worth the money in my opinion. Not like his claim would hold up in court. He claimed right to "beer" and "brewing" for christ sake!

My Professional view: I honestly have no idea why he is complaining, he just seems to want to cry and moan about something. I really don't believe you can get in any trouble at all, he has no case nor does he want to actually take legal action. I'd put it back up, once you make sure its fine.

My immature view: This guy needs to suck a fat one, on the other hand iv tryed his T-6 Red Ale and I could make better. It was pretty bad.