Hello.
Last year I found a designer from ThemeForest and asked him to make PSD template for me. I paid him money for this work. After that I created HTML and WordPress version of this template and published it on ThemeForest. Then, after 6 month since this template was published on ThemeForest, I got message from another TF author, and he told me, that he is rightowner of this template. He show me PSD template (only one page), that was similar to the template, that was made for me by designer. But this was one page, in my template was 18 pages. He asked me to delete my items, but I refused.
I asked my designer about this, and he told me, that he worked with this author before, but he left this job and started new project as a freelancer for me. And he told me, that there is no reason to worry about this because this is his work, and he did it for me.
After two weeks after that I got DMCA notice and my template was blocked on TF (PSD, HTML and WP versions).
I need your suggestion - what to do in this situation and how to resolve this issue.
Hi!
Yes, I already contact Envato support, there is answer:
We did investigate this before actioning. Our staff came to the conclusion that the complainant had the legal right to proceed. You have options too.
The issue is with the complainant and not Envato. It is a legal document that forces us to take down the disputed item immediately upon receiving the DMCA. The issuers contact information is on the attached document.
If you can come to an agreement, we need the issuer to notify us that the DMCA is withdrawn. We then allow the item to be resubmitted and return the earnings too.
Another option is issuing a Counter DMCA Notice, which is the same type of legal document but this one forces the return of the removed item. More on this can be found here -
https://help.market.envato.com/hc/en-us/articles/202820840-DMCA-Frequently-Asked-Questions <scroll down to "A DMCA takedown has been issued against my item."
After received the counter notice will be forwarded to claimant and within 14 days we return your item to our Market unless the complainant notifies us that they have initiated legal proceedings.
We hold the earnings for at least 3 months if you take no more further action or even if a Counter Notice is received. If the DMCA gets revoked by the issuer the earnings are returned immediately.
But I need advice what action to take in this situation.
From a legal point of view, the easiest for you would be if you have some kind of âlicense to useâ, signed by the person who designed the PSD template for you.
As far as Iâm aware, neither you nor the other TF author holds the copyright to the design. The copyright holder is the designer who designed the template in the first place. In the EU, for example, it is not possible to transfer copyright to someone else. What the initial designer CAN give you is a so-called âLicense to useâ, in which the designer allows you to not only USE his design to create a website for yourself, but also to SELL and to SUBLICENSE his design.
In a way, itâs similar to what Envato is doing: us authors give Envato a license to sell our designs. But the actual copyright stays with us authors. The people who purchase our items are allowed to USE them, but theyâre not allowed to SELL them as their own items.
The way I see it, the problem lies with your designer. You say he âworked with this other author beforeâ? Well, maybe heâs given both you AND the other author permission to sell this design? Or maybe he hasnât. Or maybe he was employed by the other author in the past, and âstolenâ some designs. Like I said: maybe. Maybe not. The only person who knows for sure would be the designer himself. Envato certainly donât know. All they know is that they received a DMCA takedown notice, which theyâre obliged to follow.
To avoid this kind of trouble (I do a lot of presentation design), I generally design and create everything from scratch. Infographics, vector illustrations, etc⌠lots of work, but itâs worth it because it puts me in a safe position.
In the presentations category, thereâs a lot of â letâs call it âinspirationâ â going on. Good thing for me is: because I can prove that I designed everything from scratch: if I find any other author copying my illustrations or vectors into their own designs, I can safely report them to Envato and issue a DMCA.
And (in theory): If(!) I ever have someone else do any design work for me, which I intend to sublicense and sell, I would ask that person to sign a contract, in which they confirm that they designed everything themselves, and that they are NOT selling it to anyone else.
Hi,
I understand your current situation. in this case, you can complain. But it depends on the work.
Which design was submitted first on @envato?
If yours then you can submit DMCA complaint, I think @envato will help you. Otherwise, you should contact the designer.
Thank you! 
I keep seeing people mentioning something along those lines, but Iâm 99% sure itâs absolute nonsense. What about the salaried dude who designs cars for BMW? Would BMW get in trouble for saying it was a BMW car? What about somebody on a âwork for hireâ agreement to create a bunch of stuff? What about a ghost writer etc etc?
From Wikipedia:
âThe Resale Rights Directive created a right for the creators of works of art to participate in the proceeds of the resale of their work. This right, which is sometime known by its French name droit de suite, is personal to the artist and can only be transferred by inheritance.â
In the photography world, there have been cases where some newspaper/magazine contracts asked the photographer to automatically transfer their copyright to the newspaper. Those contracts were deemed illegal. To find a way around that, newspapers/magazines are asking the photographers for some sort of âexclusive license to useâ for a specified time (or âforeverâ I guess). But the actual copyright stays with the person who pressed the shutter button.
Iâve had a read through, and that wouldnât really apply here, for a number of reasons.
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A website isnât classed as a work of art for the purposes of that law. That law is more about physical pieces of art that youâd find in a gallery. Even if it wasâŚ
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That law doesnât apply to items under 1000 Euros. Would work if it was an extended license, butâŚ
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It needs to be an original, or a very limited number of copies. Thereâs no limit to how many times an item can sell on Envato.
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The law doesnât apply to anything sold outside of the EU
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The law only applies to resellers. Weâre classed as the sellers on Envato, so there is no reseller involved.
But still, the main point you brought this up and I brought this up was whether you could sell copyright or not. Although this law is kind of similar⌠it doesnât really definitively state that copyright canât be sold. It just says that somebodyâs rights under the resale right directive canât be sold, which is slightly different.
Although I couldnât find anything saying that copyright could be sold, I also couldnât find anything specifically saying that it couldnât be sold. Did find this thoughâŚ
I hear what youâre saying. The wikipedia article was the first thing I found, so may not be the best reference. Maybe thereâs better ones (or not). Saw your link. Interesting, but still not 100% convinced. Maybe itâs possible to sell intellectual property, but still remain the copyright holder?
Anyway. In the case of this thread, it doesnât really matter. Independent of terminology (âLicense to useâ, âCopyrightâ, "Intellectual Property): Maybe the person who designed the template in the first place, was trying to generate a few quick bucks and sold it to more than one person?
In that case, BOTH theme forest authors would be right. If(!) that is the case, and if(!) contracts exist between the designer and the themeforest-authors that contains some sort of exclusivity clause, then this would be something that could be dealt with outside Envato, between the designer and the two competing authors.
Thanks for your replies
My items was first on Envato. Other author didnât upload it yet.
Did you have some examples of that contract, or can you suggest me, where I can find it?
Sorry, no. Like I said: I design everything myself, so donât have the need for such a contract. Either way, for your current problem itâs too late for a contract anyway. You either have one already, or you donât. If you donât have one, then I guess itâs hard to prove that you have any exclusive rights to sell the template.
Also: I donât think it matters which author uploaded the item first. For example, if the other author has a contract with the designer, and you donât have one, then unfortunately you lose out.
Proving copyright and usage rights can be a real mess. Thatâs why contracts are important. Whenever I design something, I keep multiple files during the design stage. Simply to show the design process, and to prove that I hold the intellectual property. (Copycats will only have the final result, not the design process files).
And when I design a logo for a client, I give them a âLicense to useâ for that logo. Some clients want exclusivity (=more expensive), other clients donât care (=cheaper for them, but it allows me to sell the logo elsewhere). Same with photography: some clients want âeditorialâ or âweb useâ only, others want âadvertisingâ or âprintâ.
A âLicense to useâ and a contract protects both the designer AND the client.
Hereâs a link for a license to use. Maybe youâll find other contracts there that suit your needs.
http://www.own-it.org/contracts/5