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Can showing your work in your portfolio violate clients trademarks?
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analogue SPRINKLES
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Aug 13, 2008, 03:04 PM
 
Long story short as a freelance graphic designer I was doing work for a particular client for 2 years. Websites, flyers, business cards etc. Never had any contracts and payment was never a problem.

Suddenly this same client contacted me to do some flyer work which I did as they ask but after it was done the client didn't run the ad because he was changing business strategies and didn't use the flyer. When I invoiced him for the work though he threw a hissy fit saying he didn't want to pay (along with some other work he scrapped) cuz he didn't use it but a week before said it was not because of me or any mistakes I made.

Then he has the nerve to call me and told me that I have to remove ALL of the work I did from my personal online portfolio as he owns trademarks on his logo and I am not allowed to show any of it. He also said he would have a lawyer send me a letter saying that if only if I removed the work from my site he would pay me for the work that I had done and he had used but not any of the work he didn't use.

Now from what I have found out as long as I am not posting any false information or slandering his company on my portfolio I have every right to show my work. All of the work was done on contract without any requirements from the beginning and created in my house on my computers.

Does this guy have any truth to what he requests or is he just playing big shot and holding a grudge?
     
design219
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Aug 13, 2008, 03:12 PM
 
He just sounds like an asshole. If it's under $7,000 you should just sue him in small claims. But first, notify him of your actions and the publicity you will provide (and at which you are skilled), unless he would like to just pay what he owes you.
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analogue SPRINKLES  (op)
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Aug 13, 2008, 03:16 PM
 
Ya I was going to sue him as he owes me around $2500 for various work. I just want to make sure he doesn't have a case before I get too bold.

What kind of publicity can I put out there without me making it sound like blackmail or getting into bigger trouble?

Can I flat out post on a forum "My client XXXXX hired me to do this and that work and he didn't pay me so I recommend you avoid doing any work for this man"?
     
design219
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Aug 13, 2008, 03:16 PM
 
As for the portfolio, you are not selling his materials, or making any kind of direct financial gain, but showing work that you did in context. I'm not a lawyer, but I think you can just ignore the removal request.

Then again, you could design a little "deadbeat" icon and stamp on all his material in your portfolio. But first, notify him of your actions and the publicity you will provide (and at which you are skilled), unless he would like to just pay what he owes you.
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Was free. Now it's gone. Never to be seen again.
Off to join its brother and sister apps that could not
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Dakar the Fourth
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Aug 13, 2008, 03:16 PM
 
He's just playing hardball on paying you.
     
design219
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Aug 13, 2008, 03:17 PM
 
Originally Posted by analogue SPRINKLES View Post
Can I flat out post on a forum "My client XXXXX hired me to do this and that work and he didn't pay me so I recommend you avoid doing any work for this man"?
If it is the truth, sure, why not?
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Was free. Now it's gone. Never to be seen again.
Off to join its brother and sister apps that could not
keep up with the ever updating iOS. RIP Nesen Probe.
     
Dakar the Fourth
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Aug 13, 2008, 03:20 PM
 
Originally Posted by design219 View Post
If it is the truth, sure, why not?
If he finds out, and this guy is indeed lawyer trigger happy, I could see him filing for slander.
(Now whether that would hold up, I have no idea, as I am not lawyer, even if I, too, lack a soul)
     
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Aug 13, 2008, 03:22 PM
 
Originally Posted by analogue SPRINKLES View Post
Never had any contracts and payment was never a problem.
All of the work was done on contract without any requirements from the beginning and created in my house on my computers.
Those two statements seem to contradict themselves.
     
design219
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Aug 13, 2008, 03:24 PM
 
analogue SPRINKLES, are you a one man show? If so, I doubt that this guy really wants to go to the trouble of a law suit. If you are a NY firm with over 50 employees, then you should be very careful.
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Was free. Now it's gone. Never to be seen again.
Off to join its brother and sister apps that could not
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ghporter
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Aug 13, 2008, 03:26 PM
 
I know this phrase gets bandied about too much, but "consult an attorney." It may cost you something, but it will get you the appropriate and necessary information about this situation. I believe that YOUR attorney will tell you that the client has his head in his duodenum (which is WAY past the colon!), and that he's just trying to intimidate you. He can contact this client with a "cease and desist the intimidation and pay the heck up" letter, which should shut the client's pie hole but good.

Not that I have any personal feelings about doot-brains that threaten people who have done work for them in good faith, mind you...

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analogue SPRINKLES  (op)
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Aug 13, 2008, 03:32 PM
 
Also from what I understand he is displaying some of my work in his store still and since he hasn't payed me for it the copyright still belongs to me and he is violating MY copyright.

I am waiting for this mystery letter from him for 2.5 weeks with still nothing so I am going to email him tonight reminding him that payment is past due and if he doesn't pay within 10 days I will send him a new invoice with compounded interest.

He also owes me money for a bunch of other things so next week I am going to print out every email he ever sent me agreeing to the work and liking it and staple it to an invoice and we'll see if he thinks he can deny that in court.
     
nonhuman
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Aug 13, 2008, 03:45 PM
 
Start using contracts.
     
design219
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Aug 13, 2008, 03:59 PM
 
Originally Posted by ghporter View Post
"consult an attorney."
Pshaw! Count on your fellow MacNerds® to provide competent legal advice.
__________________________________________________

My stupid iPhone game: Nesen Probe, it's rather old, annoying and pointless, but it's free.
Was free. Now it's gone. Never to be seen again.
Off to join its brother and sister apps that could not
keep up with the ever updating iOS. RIP Nesen Probe.
     
zombie punk
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Aug 13, 2008, 04:26 PM
 
Originally Posted by nonhuman View Post
Start using contracts.
Contracts may not be exactly what you think they are. An email requesting work be done and agreeing a rate for payment is a contract in many jurisdictions. Not a particularly satisfactory one, perhaps, but good enough to sue over. Similarly entering a restaurant and ordering food is entering into a contract to pay for it. Paperwork is not always required.
     
andi*pandi
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Aug 13, 2008, 04:53 PM
 
he sounds like a blowhard.
     
torsoboy
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Aug 13, 2008, 05:03 PM
 
Originally Posted by analogue SPRINKLES View Post
... I am going to email him tonight reminding him that payment is past due and if he doesn't pay within 10 days I will send him a new invoice with compounded interest.
If you don't have a contract where you/he said that X interest would be added after Y days of non-payment, then I don't think you can do this. Just invoice him again for the correct amount.
     
OreoCookie
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Aug 13, 2008, 05:05 PM
 
Not sure about the US, but where I come from, even a simple oral agreement is a legally binding contract and as valid as a written one. Problem is, of course, that you will have a lot more problems to actually enforce an oral contract than a written contract.
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nonhuman
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Aug 13, 2008, 05:23 PM
 
Originally Posted by zombie punk View Post
Contracts may not be exactly what you think they are. An email requesting work be done and agreeing a rate for payment is a contract in many jurisdictions. Not a particularly satisfactory one, perhaps, but good enough to sue over. Similarly entering a restaurant and ordering food is entering into a contract to pay for it. Paperwork is not always required.
I mean a contract that actually spells out the commitments and obligations of both parties. When I start a new project with a client I always have a 'terms & conditions' section to the project proposal that we both sign off on before work begins. It includes clauses such as the right for me to re-use the work and/or images of the work for my portfolio, competitions, and a few other things. It also covers situations such as if the project is called off before completion and a few other scenarios.

The idea is to make sure that there's as little room as possible for the client to get out of paying you. Even if this doesn't happen often, it does happen, and a good contract can make it easier and potentially cheaper to recover the money from a client who doesn't want to pay.
     
Chuckit
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Aug 13, 2008, 05:43 PM
 
Originally Posted by OreoCookie View Post
Not sure about the US, but where I come from, even a simple oral agreement is a legally binding contract and as valid as a written one. Problem is, of course, that you will have a lot more problems to actually enforce an oral contract than a written contract.
Like in the case of restaurants as given earlier. The idea of a formal contract, though, is that it absolutely clarifies the parties' obligations. It's like the difference between "I will pay you $5000 to make a Web site to these specs" and "Hey, can you make me a Web site? My dad will totally pay you."
( Last edited by Chuckit; Aug 13, 2008 at 05:59 PM. )
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OreoCookie
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Aug 13, 2008, 06:07 PM
 
Of course, no argument that if you're doing serious business, you should insist on some form of written contract. (My dad's a lawyer, so that has rubbed off a bit.)
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zombie punk
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Aug 13, 2008, 06:13 PM
 
Agreed - I often accept work on the basis of emailed specs and daily rates though, especially when it is for relatively small projects.
     
analogue SPRINKLES  (op)
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Aug 13, 2008, 07:56 PM
 
Ya i should have got a contract but i met him though someone else and it started with a tiny job with no contract to a few bigger ones.

That I can't change but i definitely have enough evidence to sue him. I had someone go to the location today and photograph my work still on location showing that he still uses it and doesn't think he has to pay.
     
zombie punk
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Aug 13, 2008, 08:05 PM
 
Whether or not he is using it should not be relevant - he commissioned you to undertake it. You should get paid even if he puts the work straight in the trash, as long as it is what he asked for.
     
analogue SPRINKLES  (op)
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Aug 13, 2008, 08:10 PM
 
Yep I agree, he has nothing to go on. His brother in law is a trademark lawyer so I know he is going to have him send me letter saying he'll pay me for 10% of the money he owes me IF i take down all of his trademarks down from my site and send him a CD of all of his trademarks and every file (PSD's) I ever did for him and delete it off my computer. I can't wait for that laugh
     
Andrew Stephens
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Aug 14, 2008, 03:28 AM
 
Originally Posted by zombie punk View Post
Whether or not he is using it should not be relevant - he commissioned you to undertake it. You should get paid even if he puts the work straight in the trash, as long as it is what he asked for.
Not quite. By trashing the work he could say it was not up to standard or some similar defence. By using it he blows this defence. In addition to straightforward non payment he is now also breaching copyright, so he's in deeper doo doo. If there are any images etc on the work then copyright for these has not been transferred either.

On the other side I think that he may be within his rights to request that you remove his work if it clearly displays logos etc as you are using it for commercial purposes (self promotion for commercial gain). Just because clients almost never ask this doesn't mean that they can't (if they are spectacular &*&^^%heads).

I suggest posting this in the Art and design forum may gain a better perspective from design professionals. There are some posters in there you never see/hear of in the lounge.
     
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Aug 14, 2008, 07:08 AM
 
1. Whether he uses the work or not has nothing to do with payment owed to you. As long as work has been requested, payment is owed. End of story.

2. Artists publicly displaying work created by them for the purpose of advertising their services is fair use. Again, there is no argument there.

The guy's being an asshole. Sue him in small claims and be done with it.
     
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Aug 14, 2008, 08:03 AM
 
Originally Posted by Mastrap View Post
2. Artists publicly displaying work created by them for the purpose of advertising their services is fair use. Again, there is no argument there.
”fair use of a copyrighted work […] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.“

He is promoting his own business with his portfolio. How does this fall under "criticism, comment, news reporting, teaching, scholarship, or research"? He will probably have to take down the material based on the fact that the client owns the copyright on his logo.

And anyway, he wouldn't want potential future clients to call this guy and ask how he liked working with him, so I would take it down regardless.
     
ghporter
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Aug 14, 2008, 08:03 AM
 
Originally Posted by Mastrap View Post
Sue him in small claims and be done with it.
I'd forgotten about using Small Claims Court. It's an absolute BOON to people in your situation. In many jurisdictions you don't need anything but a small filing fee to sue, and you could be able to sue for quite a lot of money. Depending on which court you file in here in Texas, it could be either $2,500 or $5,000. Not something a typical businessman will ignore! You sue. The defendant (Mr. Blowhard) is served (or somehow notified-it varies on your location). Typically he figures out that his attorney fees will exceed the cost of paying your fee AND settling the suit and he makes nice-nice with you. Or he ignores you. And loses by default. If he actually takes it all the way to court, he's probably going to be very unpleasantly surprised. Check out the rules for small claims where you are and see if it's a good fit for you-it probably is.

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analogue SPRINKLES  (op)
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Aug 14, 2008, 09:27 AM
 
Originally Posted by TETENAL View Post
[I]
And anyway, he wouldn't want potential future clients to call this guy and ask how he liked working with him, so I would take it down regardless.
No way, the work is staying on my site as I made it, he didn't even pay for some of it so the copyright is still mine. No future client will contact him directly anyway.
     
andi*pandi
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Aug 14, 2008, 10:03 AM
 
one thing you may want to consider, is that having that work on your website, in a way promotes him. That's the only reason I can think of to take it down if he continues not to pay.
     
Andrew Stephens
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Aug 14, 2008, 11:56 AM
 
Originally Posted by andi*pandi View Post
one thing you may want to consider, is that having that work on your website, in a way promotes him. That's the only reason I can think of to take it down if he continues not to pay.
what you mean other than the fact that you ARE breaching his copyright on his logos etc.

The fact that you would have to be a complete tit to press this against the designer does not mitigate for the fact that the client might actually be a complete tit.

Pressed in court I'm sure you'll loose this one, and you suing the client will probably invite retaliation in kind.
     
analogue SPRINKLES  (op)
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Aug 14, 2008, 12:39 PM
 
Originally Posted by Andrew Stephens View Post
what you mean other than the fact that you ARE breaching his copyright on his logos etc.
How am I breaching a copyright by showing a screengrab of MY work saying "I did this for this site"?

I am not copying his work or saying anything untrue. If he didn't want my work that I did for him on my site he should have said so from the beginning not as a term to get paid after the fact.
     
Chuckit
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Aug 14, 2008, 12:45 PM
 
I don't think it's a breach of copyright if you were commissioned to make it with the understanding that it might be used in a portfolio. I'm not a lawyer, but it sounds like the copyright holder authorized his use of the logo.
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Aug 14, 2008, 01:03 PM
 
”fair use of a copyrighted work […] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.“
So, what if you put some tutorials in your website based on those works? that would fit comment and teaching, huh?
     
rozwado1
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Aug 14, 2008, 02:50 PM
 
Yeah, just modify your portfolio entry a bit and write something about the process of creating it. Then it's educational!

What's a thread with no pics? or at least a link. This would fall under the 'posting for comment/critique' portion...
     
Andrew Stephens
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Aug 14, 2008, 03:08 PM
 
Originally Posted by analogue SPRINKLES View Post
How am I breaching a copyright by showing a screengrab of MY work saying "I did this for this site"?
Because your screen grab shows his copyrighted company logos for commercial gain without his permission.

It may be your work but they are HIS logos unless he hasn't paid you for them in which case you own the copyright still.

It may sound unfair, but that's life. Normally clients don't mind this use but it doesn't alter the fact that they can object and since your relationship with this one has broken down, he seems to have objected.
     
analogue SPRINKLES  (op)
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Aug 14, 2008, 03:12 PM
 
What if I keep the work and blot out his logos?
     
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Aug 14, 2008, 03:13 PM
 
I can't imagine a business owner not allowing their logo to be displayed in a positive manner for free. You must have really teed the guy off.

Did you ask for permission before posting/using them?
     
Thorzdad
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Aug 14, 2008, 03:24 PM
 
IANAL...however, I AM a practicing designer/illustrator...
I have to believe that, if this actually went to court, you would have a good argument based on a long-established history...a common courtesy or standard industry practice...that artists doing work-for-hire are allowed to use the work in their portfolios. I would think any judge or jury would recognize the practice.

That said, a client (or former client) most certainly CAN request any work you did for them be removed from public display. And, as a professional, you should probably honor this request. Granted, the guy is being a complete asshole about it. But, some clients are like that...believe me.

As for the pay, it sounds like you definitely may need to consult an attorney. I don't know what the limits are where you are, but you may be able to simply file in small-claims court. You'd be amazed how being served with a warrant will break-open a checkbook. I had to do this with a client many years ago. He was almost a year late. The day after he was served with the warrant, I had a check in my hand.

And, no, you should not publicly bad-mouth the client. This reflects as poorly on you as it does the client. Perhaps more-so.
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analogue SPRINKLES  (op)
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Aug 14, 2008, 03:25 PM
 
The funny thing is the work I did on his site was posted on several CSS showcase sites because of the design. He was happy about it as was I as they linked back to me.

I did nothing to piss the guy off. The reason this whole thing started is because he hired a full time staff member for his store who also knows graphic design so he just makes him do whatever ads he needs for his $11/h wage and needed an excuse to get rid of me.

He has done this sort of thing to several other employee's and at least 1 other graphic designer.
     
Thorzdad
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Aug 14, 2008, 03:29 PM
 
Originally Posted by Railroader View Post
I can't imagine a business owner not allowing their logo to be displayed in a positive manner for free. You must have really teed the guy off.
You'd be amazed just how far off the deep end business owners are going when it comes to copyright and IP. You see it especially with small businesses where the owner runs the whole show. They're very protective about everything and sometimes just go a bit insane.
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Aug 14, 2008, 04:19 PM
 
Does this help at all?
     
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Aug 15, 2008, 02:53 AM
 
Originally Posted by analogue SPRINKLES View Post
The reason this whole thing started is because he hired a full time staff member for his store who also knows graphic design (…)
So that member is a photoshop plug-ins master?, a corel draw guru?, I would swear that guy is going to know what overpromise and underdeliver means… laugh season is announced.
     
analogue SPRINKLES  (op)
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Aug 15, 2008, 11:52 AM
 
So I found out last night from someone that looked into it for me that he FILED for a trademark but it hasn't been approved yet.
     
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Aug 15, 2008, 12:01 PM
 
Originally Posted by analogue SPRINKLES View Post
So I found out last night from someone that looked into it for me that he FILED for a trademark but it hasn't been approved yet.
That is unlikely to be relevant.
     
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Aug 15, 2008, 03:29 PM
 
Originally Posted by analogue SPRINKLES View Post
So I found out last night from someone that looked into it for me that he FILED for a trademark but it hasn't been approved yet.
It's not the trademark on the logo it's the IP on the designs and imagery which is relevant.
     
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Aug 20, 2008, 10:09 PM
 
I had the same situation where the restauranteur hired a 'photoshop guru'/waiter that was gonna do designs in-house. The guy kept bugging me for the masters (he didn't know that I knew his master plan), so I gave him the option of purchasing them for an addl fee.

He didn't want that, so I ended up seeing a billboard for his restaurants a few months later with one of my designs all chopped to hell and pixelated (I only gave him the 72dpi jpg proofs bc I knew he was shady). Obviously his PS guru didn't understand dpi.
     
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Aug 20, 2008, 10:17 PM
 
Originally Posted by nonhuman View Post
Start using contracts.
Or at least, have your future clients sign a waiver, allowing you to display your work on your website as long as you are not generating any money off of it.

If they change their mind later on, well, tough luck for them.

-t
     
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Aug 20, 2008, 10:19 PM
 
Originally Posted by rozwado1 View Post
I had the same situation where the restauranteur hired a 'photoshop guru'/waiter that was gonna do designs in-house. The guy kept bugging me for the masters (he didn't know that I knew his master plan), so I gave him the option of purchasing them for an addl fee.

He didn't want that, so I ended up seeing a billboard for his restaurants a few months later with one of my designs all chopped to hell and pixelated (I only gave him the 72dpi jpg proofs bc I knew he was shady). Obviously his PS guru didn't understand dpi.


Priceless

-t
     
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Aug 21, 2008, 08:43 AM
 
Originally Posted by rozwado1 View Post
I had the same situation where the restauranteur hired a 'photoshop guru'/waiter that was gonna do designs in-house. The guy kept bugging me for the masters (he didn't know that I knew his master plan), so I gave him the option of purchasing them for an addl fee.

He didn't want that, so I ended up seeing a billboard for his restaurants a few months later with one of my designs all chopped to hell and pixelated (I only gave him the 72dpi jpg proofs bc I knew he was shady). Obviously his PS guru didn't understand dpi.
It's more than likely that he understood dpi, but the restaraunteur did not, and in his ignorance pushed forward thinking it couldn't be that bad.

I've seen those types before. It doesn't matter what kind of warnings/info you give them. If there's something they think can be used, they'll use it.
     
 
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