At one time or another, most designers will have to deal with the realities of a creative profession: people rip you off.
Shaun Inman recently made the unpleasant discovery that someone else had re-used his design on another site. So he did something about it by making the offense public.
Reactions to Shaun’s method varied, but many were willing to overlook the offense if the person in question was simply learning from Shaun’s work. A typical comment in that vein:
“OK, I can understand the fury if this was on a public site (yes I know it is viewable publicly - but maybe it was his test platform?), but shouldn’t you get in contact with the dude first and see what the deal is before opening him to the anger of other developers?”
And indeed, much of the time this is all that’s needed when you’ve found someone has used your work. In my experience — and trust me, I’ve had a bit with this issue — nine times out of ten, a quick email to the offender will reveal that they’re simply learning by studying someone else’s work, or saying they are because they got caught red-handed. (The other popular excuse to look out for is that “a contractor” or “an employee” took the work without their knowledge.)
Shaun didn’t have that luxury in this case due to a broken contact form, and besides, I don’t necessarily think it’s bad form to not drop a warning email anyway. If the offender was simply using the work for educational purposes, then two things should have happened. First, they should have emailed the original designer as a courtesy. Second, the work should never have found its way to a public server. When neither of those things happens, the intent of the offender must be more closely scrutinized.
Any assumptions about their purposes are useless, and no matter what the state of the work is on the server when it’s found, the simple fact that it has shown up elsewhere, without permission, is enough to cast considerable doubt on the individual’s intentions. There’s a reason the law is blind to intent. You still get traffic tickets, even if you don’t know what the laws are. Actions are what counts, and when the action is posting someone else’s work publicly and claiming it as one’s own through copyright notices or otherwise, there’s little room for interpretation.
In most cases, making the offensive site public is enough reason for anyone to quickly and proactively respond by taking it down. It doesn’t involve the designer going into a back-and-forth email exchange with varying excuses from the offender, it only takes a little bit of time to write up the violation and hit that post button, and most importantly, it usually works. When someone’s work is re-used, they should not be forced into an enormous time-wasting inquiry into the legitimacy of the ripoff. The burden of proof, or even the burden of educating someone, should not be on the designer.
In a perfect world, a quick email asking them to take it down would work. And again, 90% of the time it does. But I’ve had cases, and I kid you not, where the violator has ended up threatening me with a lawsuit. Starting off polite might be a courtesy toward the 90%, but it gets you nowhere with those who have decided your opinion doesn’t count.
I’ve also had situations where posting a link to a clear ripoff has resulted in a very quick response which, more than anything, sounds like a desperate plea to stop the incoming email. That makes me feel bad. Most people are inherently well-intentioned, and the thought of their action (or, it is possible after all, the action of an employee or contractor that they had very little to do with) being morally questionable never crosses their mind. I’d rather not inflict that on someone when it’s a genuine lack of knowledge, or a genuine mistake. But is it really my responsibility to consider someone else’s feelings, when my own weren’t?
This whole debate is easily avoided when a simple request for permission is all it takes. I like to think I’m quite generous when someone simply asks if they can do something. When the relationship starts with mutual respect for each other’s wishes, there’s no issue. If that doesn’t happen though, then we have a problem.