If you decide to play the tender

In continuation of the hefty work, some of the results of which can be studied in detail by the links here .
We sat there just now, recalled what other points should be taken into account from the point of view of potential courts on the activities of design studios or agencies, I began to tell a more than typical story.

For example, they called you for a tender. This is generally my favorite, but let you think that the tender is so normal, and you go to it. Moreover, many clients cannot be visited without a tender in any case. Well ok, you go. And they even provided a sketch of the main page of the site, because the tender was just for the site. Yes, they directly provided it, without research, without deeply understanding the priorities in its composition, they took the task in all seriousness from the tender task, it was suddenly described there not as usual, but by an understanding person, and even clearly and accessible (to you) language . In short, a miracle happened, and you made an amazing first page, although it was just a sketch.

Of course, you lost the tender. And his company, owned by the niece of the customer’s company’s CEO, won. Predictably, by the way, because she could ask her uncle at dinner about the nuances of the company's positioning, priorities for using the site, its aesthetic expectations, and even ask him to show the sites that he really likes. In short, to do the very work that you could not do in the tender, even if you really wanted to. Ooooh.

And then 7 months passed from the 2 announced on the terms of the tender, and the niece’s studio finally rolled out the first release of the site, consisting of the first page, a page with the board of directors and a typical 404th. And then it suddenly became clear that the radical differences from your sketch in this project are that below is a proud “made in the studio Zakhod and Masterpieces.” And some of the texts of Lorem Ipsum were replaced with press releases of the company six months ago, although not all . But, in general, creative work has been done, again laid out, though the tables But in IE6 no spreading Well, almost...

"eeeeeee" - you say in feysbuchke (vkontaktike, schoolmates, moemmire) "Which creature!". - all 43 friends echo you, and you disagree, they go to despise your customer and you - prepare for the next tender.

Meanwhile, according to Article 1228, 1255, 1257, clause 1, Article 1259, paragraph 1 of article 1270 of the Civil Code of the Russian Federation, the design project of the Internet site interface is an independent object of copyright - a work (design work), consisting of several results of intellectual activity, and is protected as a work of design. And the lack of contractual relations with the customer does not in any way give him the right to use what is in his hands.

According to paragraphs 9 p. 2 Article 1270 of the Civil Code of the Russian Federation using a work is considered a translation or other processing of the work. At the same time, the processing of a work means the creation of a derivative work (processing, film adaptation, arrangement, dramatization, and the like). Including the site based on the sketch. Here, of course, there is a question: how can one prove that it was created precisely on the basis of your sketch, and not independently on the basis of a template from the template monitor from which you actually drew your sketch? But we will figure it out in the comments, now Mityagin will come, he is smart, he will tell.

And, of course, other persons, including your customer, cannot use the corresponding result of intellectual activity without the consent of the copyright holder, with the exception of cases provided for by the Civil Code of the Russian Federation. Using the result of intellectual activity without the consent of the copyright holder, that is, you, is illegal (paragraph 3, paragraph 1 of article 1229 of the Civil Code of the Russian Federation). Hurrah Hurrah.

And finally, the most delicious. The copyright holder has the right to demand compensation in half the cost of the right to use the work, determined on the basis of the price, which under comparable circumstances is usually charged for the lawful use of the work in the way the violator used (subparagraph 3 of article 1301 of the Civil Code of the Russian Federation).

This is about double - very important. The trick is that you can write any wildest penalties in the contract, but in practice the court will refer to the fact that the fine should be proportionate to the amount of damage, it will give you the money that you should have received, and the sanctions recorded in the contract will go to the forest . Those who have ever sued for these very penalties know that there are no chances there. Maximum - refinancing rate for using borrowed funds. 8.25% per year. But with article 1301 you don’t run into proportionality, the law directly says - give out money + 100%. Which is 12 times more.

The jurisprudence in this place is quite positive, say, not later than this year my colleague successfully bent one traditional bunch from the Very Official Customer, who after the tender handed in a row to one Very Official Laying, which cheerfully handed over the sketch of my colleague to the freelancer from the fraternal republic, which cheerfully made the site for about 2% of the tender amount. With predictable quality and refinement. I’ll tell you a secret: the matter didn’t reach the court, the world was signed almost instantly. Do you understand why?

The algorithm of actions as a whole is simple.

1. We draw up evidence of our rights to the prototype, layout, interface.
   
   • with each designer in the team you must have contracts, either labor, if it’s full-time employees, or contracts of copyright order or alienation of copyrights, if it’s specialists
   • Contracts must be duly signed with all annexes and acts of transfer of results. Otherwise, you will not be able to prove your rights to the work of design and, therefore, receive compensation for the violation. All samples and templates from the links here.
2. We collect all the formal traces of relationships with the customer, fix the publication (screenshots, notarization of electronic correspondence, publications, sites).
   
   • fix publications - screenshots of the designer’s sites on which the prototypes were posted, as well as screenshots of the customer’s site,
   • notarize electronic correspondence with the customer’s representatives, who confirm the development of prototypes as part of preliminary agreements and explain where the designer’s mock-ups come from.
3. We do a comparative analysis (examination) of our prototype and the finished result. Ideally, an external expert. He will not be independent, because you pay him, but it is better than your personal opinion
4. We ask Theme Lebedev for estimated costs of similar results. Officially. In addition to Theme, it makes sense to request some more similar assessments from colleagues with more reasonable prices, but for contrast, to ask Temin the price will be especially useful. To indicate the horizon, so to speak.
5. Present the draft Claim as a claim, send copies to all interested parties. In addition to the intruder (the failed customer who took advantage of your mock-ups) - this will also be a “dummy” design studio that gave your work away as its own and possibly an executor of the order if the contract was not concluded directly with the design studio. Everyone has reputational risks that can be even more expensive than money.

Ideally, you can still connect a lawyer, in case you yourself do not know how to speak expressively. But if you believe in yourself - a lawsuit designer to help you. We’ll do it soon. Who needs it - mark in the comments, post a link.