How do I fight against a cease and desist letter?

UPDATED: Sep 19, 2011

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How do I fight against a cease and desist letter?

I am a professional designer that was both gainfully employed and working as a contracted business owner for this client. 3 years ago my business did design work for the client and had a stipulation to use the design work in the business portfolio. Then 2 years ago, I was personally under the employm of the client (full-time work) and there was no stipulation against using work for portfolio purposes. Additionally I had a verbal agreement to use work for portfolio use. Recently the client has sent a cease and desist to both myself and my company regarding use of designs. I am curious as to my next steps

Asked on September 19, 2011 under Business Law, Georgia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Generally speaking, work done as an employee of someone else or as work-for-hire by a contractor or vendor belongs to the employer or client, and the designer employee or contractor has no right to it--including no right to use it in a portfolio. However, the employer or client can certainly give the employee or contractor the right to use it in a portfolio, and contracts or agreements like that are enforceable. So if there was either a written contract giving you the right to use work in your portfolio, or an oral (also called verbal, though oral is the better term) agreement, that agreement is enforceable. However, the problem for you may be the work done while employed, subject to the oral agreement; while the agreement is, as noted, legally enforceable, proving its existence and its terms may be difficult and expensive. Also, if the oral "agreement" was a promise made unilaterally by the employer after you were already working there, it may not in fact be an enforceable agreement--an enforceable agreement involves "consideration" offered by both sides to bind the agreement, but if  you were already working there, you did not offer anything to the employer in exchange for the promise to let you work; that would make the promise a "mere" promise, which the employer could go back on.

For any work covered by a stipulation in a written contract, while an outside contractor, you'd seem to have a good case to use it, subject to the term of the stipulation; it may be  very difficult to establish your right to use work covered by an oral promise made while you were an employee.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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