If you decide to play a tender

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

For example, they called you to the tender. This is generally my favorite, but even if you think that the tender is so normal, and you go to it. Moreover, many clients without a tender cannot enter anyway. Well ok, you went. And even provided a sketch of the main page of the site, because the tender was just on the site. Yes, they gave it directly, without research, without deep understanding of the priorities for its composition, the task was taken from the tender task in all seriousness, it was suddenly described there not as usual, but by an understanding person, and even clearly and accessiblely (to you) . In short, a miracle happened, and you made an amazing first page, although it was just a sketch.
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Tender you naturally lost. And won his company, owned by the niece of the customer's company CEO. Predictably, by the way, because she could ask her uncle at dinner about the nuances of positioning the company, priorities using the site, its aesthetic expectations, and even ask him to show those 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. Oooooh.

And now, 7 months have passed from the 2 declared by the terms of the tender, and the niece's studio finally rolled out the first release of the site, consisting of the first page, the board page and the typical 404 page. And then suddenly it turned out that the radical differences from your sketch for this project are that the bottom is proud “made in the Studio Sunset and Masterpieces". And some of the texts of Lorem Ipsum are replaced by press releases of the company six months ago, though not all But, in general, the creative work was done, again they made up, even with tables. But in IE6 it does not spread at all. Well, almost.

"Eeeeeee" - you say in Facebook (vkontaktika, classmates, my world). “What creatures!” - all 43 friends echo you, and you disperse, they go to despise your customer, and you - prepare for the next tender. No, well, what?

Meanwhile, according to Art. 1228, 1255, 1257, p. 1, Art. 1259, Clause 1, Article. 1270 of the Civil Code of the Russian Federation the design-project of the interface of the Internet site is an independent object of copyright - a work (design work) consisting of several results of intellectual activity, and is protected as a design work. And the lack of contractual relations with the customer by no means gives him the right to use what he has in his hands.

According to paragraphs. 9 p. 2 Art. 1270 of the Civil Code of the Russian Federation the use of a work is considered to be a translation or other processing of a work. In this case, the processing of a work is understood as the creation of a derivative work (processing, film adaptation, arrangement, dramatization, etc.). Including the site based on the sketch. Here, of course, there is a question: how to prove that this is created precisely on the basis of your sketch, and not independently on the basis of a template with a template playmont from which you actually sketched 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, except for 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). Cheers cheers.

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

This two-fold is very important. The trick is that you can write any wildest penalties to the contract, but in practice the court agrees that the penalty should be commensurate with the amount of damage, will give you the money that you should have received, and the sanctions recorded in the contract will go through the forest . Those who have ever tried for these penalties know that there are no chances there. Maximum - the refinancing rate for the use of other people's funds. 8.25% per year. But with Article 1301 you do not rest on proportionality, the law directly says - to issue money + 100%. Which is 12 times more.

Judicial practice in this place is quite positive, say, not later than this year, my colleague successfully bent one traditional bundle from a Very Official Customer, who after the tender passed a contract to one Very Official Gasket, which cheerfully passed on a sketch of my colleague to a freelancer from the fraternal republic, who cheerfully made saytik for about 2% of the tender amount. With predictable quality and refinement. I will tell you a secret: the case did not come to court, the peace treaty was signed almost instantly. Do you understand why?

The action algorithm is generally simple.

1. We make evidence of our rights to the prototype, layout, interface.
   
   • with each designer in the team, you must have contracts, either labor contracts, if they are full-time employees, or copyright contracts or copyright alienation contracts, if they are specialists involved
   • contracts must be properly signed with all applications and transfer of results. Otherwise you will not be able to prove your rights to the product of design and, therefore, receive compensation for the violation. All samples and patterns are linked here.
2. We collect all the formal traces of the relationship with the customer, fix the publication (screenshots, notarization of electronic correspondence, publications, sites).
   
   • fix publications - screenshots of designer sites, on which prototypes were posted, as well as screenshots of the customer’s site,
   • notarize electronic correspondence with customer representatives, which confirm the development of prototypes in the framework of preliminary agreements and explain where the designer’s models come from at the Customer.
3. We make a comparative analysis (expertise) of our prototype and the finished result. Ideally, an external expert. He will not be independent, for you pay him, but this is better than your personal opinion.
4. We are asking Theme Lebedev for approximate costs of similar results. Officially. In addition to the Theme, it makes sense to ask for a certain number of similar assessments from colleagues with more reasonable prices, but for contrast, asking for a theme will be especially useful. To mark the horizon, so to speak.
5. Submit a draft lawsuit as a claim, copies sent to all interested parties. In addition to the intruder (the failed customer who used your layouts) - this will also be a “fake” design studio that has given your work as its own and, possibly, contractor, if the contract was not concluded directly with the design studio. Everyone has reputational risks that can be even more expensive than money.

Ideally, still connect a lawyer, in case you yourself do not know how to speak expressively. But if you believe in yourself, the lawsuit designer will help you. We'll do it soon. Who needs it - check in the comments, I will throw the link.