A while back, I was involved in trying to create a fitness training program for a certain segment of the workforce. I was attempting to create a partnership with a company who has a facility in which we could do the training and they were interested in seeing what type of services I would provide.
I presented them with a clear outline of what I would do with this population, broken down clearly into testing and training, injury prevention, etc. After my presentation I left them with a copy of the materials and told them to contact me if they were interested in seeing this project go ahead…
Fast forward a little over a year and I have not hear back from this company, it was not a huge concern, but disappointing because it was a good opportunity. I just happen to be surfing the web when BAM, right there word for word, my fitness program overview is sitting on their company website as part of a fitness program they are offering for profit.
I still have a copy of the original document as well as proof of when it was authored. Do I have any legal recourse against this company?
I spent a considerable amount of time on the program and feel I deserve compensation.
Sorry I dont have any advice, but I just want to say that sucks, and I never cease to be amazed at how low people will stoop. If I were going into a meeting with some business executive-types, and someone told me to protect myself against such a situation as yours I probably woulda thought, nahhh, nobody’d stoop that low.
Yes, you have, at minimum, a claim for breach of an implied contract, among other things. Problem is, will the amount you receive in compensation cover your legal fees?
That does suck - though without a written confidentiality agreement, and without your having copyrighted your work, it’s an uphill battle.
Copyrights aren’t my area – there may be some sort of common law IP protection you can get here. And perhaps some damages for misappropriation of your idea. It sounds particularly egregious in that it’s word for word what you had in your presentation.
You may see if you can find someone to take the case on contingency - or a friend who can send them a threatening “cease and desist” letter, which at the very least may convince them to take down your work with the threat of a future lawsuit.
[quote]BostonBarrister wrote:
That does suck - though without a written confidentiality agreement, and without your having copyrighted your work, it’s an uphill battle.
Copyrights aren’t my area – there may be some sort of common law IP protection you can get here. And perhaps some damages for misappropriation of your idea. It sounds particularly egregious in that it’s word for word what you had in your presentation.
You may see if you can find someone to take the case on contingency - or a friend who can send them a threatening “cease and desist” letter, which at the very least may convince them to take down your work with the threat of a future lawsuit.[/quote]
BB makes a good point or two (surprising, huh?) Typically you can copyright something just by affixing that (c) mark on the document with the year and maybe your name prior to distributing it, but it sounds like that did not happen. Really, the best thing that should have been done would have been a simple non-disclosure agreement, but again, hindsight does not help you much.
Since you may be able to prove they took what you created word-for-word without crediting you, you could have a shot. That was really the idiotic move on their part because if it was more the idea, that would have been much tougher for you to prove.
Keep us posted. I would be curious to see how this turns out.
[quote]MikeTheBear wrote:
Yes, you have, at minimum, a claim for breach of an implied contract, among other things. Problem is, will the amount you receive in compensation cover your legal fees? [/quote]
Thanks, I will be contacting a lawyer tomorrow. I don’t really care if it covers the cost, I simply want to show them that I am not willing to allow it to happen without some legal ramifications. No doubt they have done this type of thing before.
[quote]KBCThird wrote:
Sorry I dont have any advice, but I just want to say that sucks, and I never cease to be amazed at how low people will stoop. If I were going into a meeting with some business executive-types, and someone told me to protect myself against such a situation as yours I probably woulda thought, nahhh, nobody’d stoop that low.
Hope you get some kind of restitution.[/quote]
I am beginning to realize that people will stoop to any level for the all mighty dollar!!! at least it only cost me my time and not my money in some sort of partnership.
[quote]Kuz wrote:
BostonBarrister wrote:
That does suck - though without a written confidentiality agreement, and without your having copyrighted your work, it’s an uphill battle.
Copyrights aren’t my area – there may be some sort of common law IP protection you can get here. And perhaps some damages for misappropriation of your idea. It sounds particularly egregious in that it’s word for word what you had in your presentation.
You may see if you can find someone to take the case on contingency - or a friend who can send them a threatening “cease and desist” letter, which at the very least may convince them to take down your work with the threat of a future lawsuit.
BB makes a good point or two (surprising, huh?) Typically you can copyright something just by affixing that (c) mark on the document with the year and maybe your name prior to distributing it, but it sounds like that did not happen. Really, the best thing that should have been done would have been a simple non-disclosure agreement, but again, hindsight does not help you much.
Since you may be able to prove they took what you created word-for-word without crediting you, you could have a shot. That was really the idiotic move on their part because if it was more the idea, that would have been much tougher for you to prove.
Keep us posted. I would be curious to see how this turns out.[/quote]
I was absolutely dumbfounded to see it word for word, same font, same bullets, same bold headings, in the same order as what I had given them. I hope it works out in my favor that they were too lazy to modify it.
[quote]ActionJackson wrote:
MikeTheBear wrote:
Kuz and BB - what about quantum meruit and implied contract?
I think I can be bold enough to assume that I know what implied contract is, but what is quantum meruit?
Thanks,
Jackson[/quote]
Quantum meruit is a form of equitable restitution. You get the reasonable value of the services you provided. It’s the measure of the money you get in some implied contract cases.
Incidentally, copyright vests on the creation of the document. Affixing the (c) mark and registering the document with the Library of Congress merely gives procedural advantages.
Yes, you sound like you have a claim. Breach of (implied) contract and copyright infringement, probably. Perhaps other claims under you state’s laws.
[quote]ActionJackson wrote:
MikeTheBear wrote:
Kuz and BB - what about quantum meruit and implied contract?
I think I can be bold enough to assume that I know what implied contract is, but what is quantum meruit?
Thanks,
Jackson[/quote]
Been so long since I’ve had contracts that I had to look this up myself. Here is an “official” definition:
Latin for “as much as he deserved,” the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician’s emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.
It’s similar to an implied contract theory. The basic idea is that a person, or in your case a company, shouldn’t get something for nothing. You left a copy of your outline as a courtesy with the understanding that they would contact you to work out a deal.
The trick in your case will be to show that the plan they have on their Web site is, in fact, the plan that you recommended. Just to play Devil’s Advocate, a lot of generic employee fitness plans look alike. They could say that they got the plan from someone else who offered them a better deal. Of course, they would have to actually produce this person as a witness. These are some of the issues that you’re looking at down the road.
You might have a case for copyright infringement, but you might not get very much in terms of a settlement or judgement unless you can prove there were actual damages; they could just be forced to change the text.
Also if you didn’t have any kind of documentation about the proposed partnership between you the company will be hard to prove that they stole your idea (they could claim that they had the idea and were only seeking proposals from a number of different people).
I’m not saying that you don’t have a case, it’s just that it might somewhat harder to prove so it could be expensive (companies often know that they don’t need to win, they just need to have enough money to out-last the other guy).
So when you talk to the lawyer, you need to figure-out how much it might cost you if you lose (also insidering that you might have to pay the other party’s attorney fees).
If you can’t afford to lose the case and it’s not an slam-dunk… it just might not be worth it.
[quote]MikeTheBear wrote:
ActionJackson wrote:
MikeTheBear wrote:
Kuz and BB - what about quantum meruit and implied contract?
I think I can be bold enough to assume that I know what implied contract is, but what is quantum meruit?
Thanks,
Jackson
Been so long since I’ve had contracts that I had to look this up myself. Here is an “official” definition:
Latin for “as much as he deserved,” the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician’s emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.
It’s similar to an implied contract theory. The basic idea is that a person, or in your case a company, shouldn’t get something for nothing. You left a copy of your outline as a courtesy with the understanding that they would contact you to work out a deal.
The trick in your case will be to show that the plan they have on their Web site is, in fact, the plan that you recommended. Just to play Devil’s Advocate, a lot of generic employee fitness plans look alike. They could say that they got the plan from someone else who offered them a better deal. Of course, they would have to actually produce this person as a witness. These are some of the issues that you’re looking at down the road.[/quote]
I am thinking this is similar to going to get your hair cut, then refusing to pay saying you did not have any agreement. If the person performed a service and you know or should have known they expect to be compensated for the service then the person that provided the service is entitled to compensation. It is to prevent unjust enrichment. Does this sound right?
It sounds like you was robbed.
The question is not whether you could prevail at trial under one legal theory or another. The question is, can you find an attorney who will fight for you on a contingency basis. The answer to this question probably depends on where you live. There are a shitload of attorneys out there in most places.
If the offending company is a large enough concern, you can be sure they have legal representation.
If you can find a good attorney to take the case on a contingency, he can approach the other side with your complaint. This can be done a sharp way, through litigation, or more softly, with a phone call or letter.
More than likely, the offending company will pay to make you go away at some point, especially if you have a legal mouthpiece. Of course, this may not happen until you have incurred significant litigation costs (which may be fronted by your attorney).
In addition, the attorney will take his cut. (Mine would be 40%.) Worst case scenario is you file a lawsuit that gets dismissed and you get sanctionned by the court. This should not happen if the legal theory has any merit and the facts are as you have presented them.
It sounds like you have your shit, I mean evidence, together. You just need to decide whether the fight is worth your time, effort and, perhaps, money.
My two cents.
You’ll need to establish that the information and arrangement wasn’t in the public domain. It’s like the analysis we did relating to cookbooks a while back relating to whether they are copyright protected – if the recipes are out there in the public domain, it’s hard to get argue they’re protected. There can be more protection on the arrangment and other items that it’s clear the author created – but that’s assuming you actually get the copyright protection. IP is a different animal from regular property, and from services.
That’s the difference from the haircut kayrob – if the company had hired Action to produce this, and then took it and had not paid him for the labor, that would be analogous. Taking something he actually gave them, and didn’t restrict contractually, is another matter.
There may indeed be an implied contract/unjust enrichment claim - but just remember that verbal contractsa aren’t worth the paper they’re written on, and implied contracts don’t even rise to that level. You will essentially need to prove each element of the issue without any written proof other than your proof of authorship – that may be a tough row to hoe.
Also, damages might be limited to disgorgement of profits, which, if they haven’t made any (or if they’ve only made minimal profits) might be de minimus.
BTW, I PMed you – send me your email and I’ll send you a form of Non-disclosure Agreement you can use in the future.
What are the real, not perceived, damages, and how much is your time worth?
These are the two questions I always ask myself before entering into a legal scuffle over crap like this.
Regardless or wether or not you get an atty to take it on contingency, you will still have a fair amount of time into this.
If the estimated amount of hours you will have to spend taking legal action, instead of working on securing new clients or retaining existing clients, times what an hour of your time is worth at peak productivity is less than 35-40% of the REAL damages, I would say go for it. Realizing, in particular when attorneys get involved, nothing is guaranteed.
No attorney is going to take this on contingency to help you prove to the world you got screwed and won’t stand for it. They need to smell money.
Best advice on this thread is BB sending you a non-disclosure agreement and telling you to use it.
My advice? Consider this a cheap lesson and do your best to keep it from happening again.
If you are going to incur legal fees, do it on the front end to keep crap like this from happening in the first place.