Designer warrants that his services and Work product shall not infringe on the copyright or any other rights of any third party or breach any contract or duty of confidence or otherwise infringe any third-party rights or contravene any applicable laws.
My immediate thought is that it sounds like an acceptable bit to include, but just wanted to double check with this forum. Does it seem alright, or would you make any changes to the language?
Also: is it the exclusivity-owner (client) or the IP owner (designer) who is supposed to pursue any unauthorized use of the bespoke typeface by a third party?
Thank you in advance!
Kasper
Comments
As far as unauthorized uses go, both parties would work to squash any unauthorized uses, you as the designer finding them, them as the owner enforcing them.
Thanks for the clarification!
This starts to get complicated so I'll try to say it briefly...The vast majority of large company license enforcements happen because the company doing it is a mess, which means just telling them to stop doesn't always work. Also, depending on the country where the use has taken place, and given that this would be a situation where the violator doesn't have a license of the font (hence no contract with you that you can enforce) if they are uncooperative then you'd could find yourself in a quagmire. If I were in your position I'd want to make sure that the client doesn't expect me to take on those costs if I don't want them and wouldn't consider me liable for their loss of exclusivity if I fail at getting the fonts removed.
@Kasper Pyndt I'm happy to help and wish you the best of luck.
@Stuart Sandler I think your post assumed ownership transfer? I hope you can clarify. I think that your advice is probably in error given the facts here. In my experience, most customers think that the licensor of a license that expressly grants exclusivity thinks that means the licensor is taking on the responsibility of enforcing it. Obviously, that's insane given the vastness of the internet, the likelihood security breaches would come from the licensee side, and the fact that the licensor is probably a small business. However, just because the licensor thinks all they are promising is that they themselves will not license anyone else doesn't mean that's understood by both parties. Additionally, I'd think that if the licensee is writing the contract that it's highly unlikely it's written that way.
Personally I don't offer any indemnity unless it is limited to the cost of the license.
But what has also happened with Omnes, only once that I can prove, is that an existing licensee put out an RFP requesting a knock off of Omnes that would be made from scratch and that they could own. The reason they could get away with that is that we don't have a design patient on Omnes (almost no one does) and are an American company so we can't copyright the letterforms. If we were Dutch or French all outward signs suggest we could have sued the fuck out of them.
As an aside, I see RFPs like that a couple times a year. I decline them and tell the issuer of the RFP (usually a branding agency but sometimes the end client) that any foundry that takes on an RFP like that is already doing something widely considered unethical and so shouldn't be trusted.
But, I get that sometimes you gotta eat. I mostly judge the customers for these requests and not the font people doing the work. So, rather than getting into all that or I simply said that the indemnification clause might be a trap if their request in the first place was for a knock off.