The Hock Shop hit with lawsuit?

[Dracosbane]

As a designer and photographer, if I do something for my unit or wing or NHQ, and I say "sure, you can use it" that does not give them the rights to it, nor does it give them the right to take it as their own and use it elsewhere. 

Absolutely true.  You can license your IP to anyone on earth, and reserve any rights to yourself.  Normally this is done with a written contract and license, which as a professional I'm confident that you use routinely.

However, just giving away your work without reserving any rights in writing may well mean that your work is now in the public domain and can be used by anyone without compensation.

Which is usually the situation when a unit member designs a patch - intending it to be used by the unit - and it is passed out freely to everyone in the unit without any sort of reservation of rights.

Nobody owes anyone anything in that kind of situation.  Nobody can assert ownership down the line and prevent anyone esle from using it. 

Just one of those "legal" things.

However it is not CAP Inc. property and they can not tell me I can not produce or sell them nor can they tell me I must use their supplier and that they get a cut as I am the copy right holder and I allow GLR-IN-227 to use the image as a unit patch and on letterhead, websites, etc. If I want to have a hundred made and sell them for five bucks a pop, nobody can stop me.

Unless the artwork includes the words "Civil Air Patrol" or other IP reserved exclusively for CAP, Inc.  In which case, they have the right to enjoin any unauthorized use or sale.

Another one of those "legal things."

Ned Lee
Former CAP Legal Officer

Disagree. Any IP work done on behalf of an employer becomes property of the employer. Any newspaper I've ever worked for owned my stories, my graphics, my photos, whatever, since I was doing the work for hire.

As a member of CAP deployed on a CAP activity, you are an agent of CAP. You follow CAP regulations. You are covered by CAP insurance (which could be considered a form of compensation). You, in essence, are working for CAP, albeit for nothing. Any intellectual property generated on behalf of CAP is CAP's property unless the corporation says otherwise.

As for a squadron emblem ("patch"): The emblems of subordinate units in a wing are to be approved by the wing commander, who is also the only corporate officer in each wing. Since the emblem will be worn on the uniform and used in other ways, it is the wing commander who approves/disapproves emblems in his/her wing. The emblems, we can contend, become CAP property.

No.

I am a volunteer.  I am not employed by CAP.  And I did not design a unit patch on CAP's time.  I still own the rights to the images I created.  You worked for a newspaper, and as such your work for them was paid for.  If I was paid properly (well more than what any unit would be able to afford) I could sign over the rights.  As I volunteered my time, I still have the rights.  I can be compensated for usage, and they still wouldn't have the rights to the image.

Being approved for usage does not take my IP or copyrights away from me.  It's still just usage.  If I freelance a photo, and allow a company to use it for an ad, I still have the rights to my photo, but I'm letting them use it based on approval of their boss/company/client.  Granted, I'd probably be paid a lot of money for that usage in that scenario.

And no, it's not public domain just because I gave that unit the usage without formal compensation.  They'll compensate me by being word of mouth advertisers for me, and by giving me credit for the design when people ask, and by giving me a patch when they're created.  And I can use it for whatever else I want, because it's mine.

[wuzafuzz]

Until CAP first cures its own addiction to creating the logo, slogan, or symbol of the week, suing over someone infringing on our pathetic brand is laughable.  CAP Inc may be within their legal rights to do so, but not everything that is legal is just.

Why CAP doesn't simply agree to terms with The Hock is beyond me.  They could very easily insist on some cash for use of CAP's distinctive images.

Shame.

[Ned]

Disagree. Any IP work done on behalf of an employer becomes property of the employer. Any newspaper I've ever worked for owned my stories, my graphics, my photos, whatever, since I was doing the work for hire.

I'm not sure what you are disagreeing with.

I agree any IP work done on behalf of an employer normally belongs to the employer absent some agreement to the contrary. 

I'm guessing, however, that relatively little IP work is done on behalf of CAP by volunteers.  Particularly graphical work.

I suspect we would agree that it is only work done "on behalf" of CAP that becomes corporate property.  A CAP member whose duties do not include IP work for CAP is certainly allowed to develop their own IP, even if it tangentally touches on CAP themes or matter. 

I could write my memoir and describe my CAP involvement.  CAP would not own it.  (Nor would anyone else, since no one will every buy my memoirs.) 

As for a squadron emblem ("patch"): The emblems of subordinate units in a wing are to be approved by the wing commander, who is also the only corporate officer in each wing. Since the emblem will be worn on the uniform and used in other ways, it is the wing commander who approves/disapproves emblems in his/her wing. The emblems, we can contend, become CAP property.

Not a bad arguement, but I doubt that approval creates ownership in this instance.  Refer to the American flag discussion above.  We don't own that despite corporate approval for wear on our uniform.  The same for rank insignia, etc.

But the net effect is pretty much the same for all practical purposes.  A unit patch designed and adopted years ago by the Anytown Composte Squadron cannot be controlled by the heirs of the designer.  And I suspect that CAP, Inc would have little if any interest or ability to control the use of the patch by civilians (as long as it doesn't contain the words "civil air patrol" or IP explicitly owned by CAP).

Good discussion.

[Hawk200]

Starting to think that a little too much corporate mentality is becoming the norm at National. The greed part is really disturbing.

[Major Carrales]

What if he "gives" the items away?  I can see it now...order an pistol belt, get a CAP insignia for free.

[tdepp]

Disagree. Any IP work done on behalf of an employer becomes property of the employer. Any newspaper I've ever worked for owned my stories, my graphics, my photos, whatever, since I was doing the work for hire.

As a member of CAP deployed on a CAP activity, you are an agent of CAP. You follow CAP regulations. You are covered by CAP insurance (which could be considered a form of compensation). You, in essence, are working for CAP, albeit for nothing. Any intellectual property generated on behalf of CAP is CAP's property unless the corporation says otherwise.

As for a squadron emblem ("patch"): The emblems of subordinate units in a wing are to be approved by the wing commander, who is also the only corporate officer in each wing. Since the emblem will be worn on the uniform and used in other ways, it is the wing commander who approves/disapproves emblems in his/her wing. The emblems, we can contend, become CAP property.

Work made for hire is for employees.  And work made for hire only applies to employees acting in the scope of their usual duties.  So yes, a employee who is a journalist for his newspaper doesn't own the copyright in his articles.  But the circulation manager who is not expected to write an article could still claim ownership as that is not within the scope of his duties. 

Freelancers typically have to sign an assignment of their works to the newspaper as they are not covered by works made for hire as they are not employees.

The Copyright Act of 1976 defines "work made for hire":
Section 101 of the copyright law defines a "work made for hire" as:
1 a work prepared by an employee within the scope of his or her employment;
or
2 a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. For the purpose of the foregoing sentence,
a "supplementary work" is a work prepared for a publication as a secondary
adjunct to a work by another author for the purpose of introducing,
concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes; and an "instructional
text" is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional activities.

Copyright Office Circular 9 (http://www.copyright.gov/circs/circ09.pdf) boils down the factors.

All or most of these factors characterize a regular, salaried
employment relationship, and it is clear that a work created
within the scope of such employment is a work made for
hire (unless the parties involved agree otherwise).
Examples of works for hire created in an employment
relationship are:
• A software program created within the scope of his or her
duties by a staff programmer for Creative Computer Corporation
• A newspaper article written by a staff journalist for publication
in the newspaper that employs him
• A musical arrangement written for XYZ Music Company
by a salaried arranger on its staff
• A sound recording created by the salaried staff engineers
of ABC Record Company
The closer an employment relationship comes to regular,
salaried employment, the more likely it is that a work created
within the scope of that employment would be a work
made for hire. However, since there is no precise standard for
determining whether or not a work is made for hire under
the first part of the definition, consultation with an attorney
for legal advice may be advisable.

Using the US Supreme Court's test in CCNV v. Reid, I think a CAP volunteer would not be an employee so work for hire would not apply.  If they were a CAP employee, probably a different result, depending upon their job.

Unless there is some special provision of federal law that I'm not aware of concerning CAP members--who are volunteers, not employees--it is my opinion they would continue to own their IP.  Now, could CAP require, as a condition of membership, a written assignment of IP rights created by members while working on CAP missions and activities?  Sure.  But I don't remember signing any such document. 

So, absent a written assignment, I think it is unlikely that CAP could take ownership of a member's IP.  Might they have an implied license to use it?  Yes.  But outright ownership?  No.

Could I fashion a reasonable argument that CAP should own the member's IP?  Certainly.  Would it likely prevail?  Doubtful.  That's why we lawyers get the big bucks, to make arguments based on the facts and the law.     That's how the law changes. 

[Майор Хаткевич]

Starting to think that a little too much corporate mentality is becoming the norm at National. The greed part is really disturbing.

It's not greed. CAP signed a contract, and this is part of upholding that contract.

[Hawk200]

Starting to think that a little too much corporate mentality is becoming the norm at National. The greed part is really disturbing.

It's not greed. CAP signed a contract, and this is part of upholding that contract.

Sure looks like greed.

As to the signing, we know who signed the contract. And I suspect if more people knew that it was intended to happen, it might not have.

But hindsight is always 20/20.

[Pylon]

I didn't say changing would be easy.  I said finding a designer would be easy.  Throw a stone on the internet and you can hit a graphic designer.

Corrected:  Throw a stone on the internet and you can hit someone who calls themselves a graphic designer.

[tdepp]

Starting to think that a little too much corporate mentality is becoming the norm at National. The greed part is really disturbing.

It's not greed. CAP signed a contract, and this is part of upholding that contract.

Sure looks like greed.

As to the signing, we know who signed the contract. And I suspect if more people knew that it was intended to happen, it might not have.

But hindsight is always 20/20.

I'm saddened about all this complaining about "greed."  Funding for a private, non-profit corporation like the CAP is always difficult, even in the best of times.  CAP has an asset in its intellectual property that someone is actually willing to pay for through licensing.  And yes, that money ultimately comes from the members through the items they buy.  Vanguard is willing to pay a licensing fee.  Is the Hock Shop?  I don't know the answer to that.

Regardless, would you rather pay higher membership fees to help fund the organization?  Are you willing to go to Congress and your Congressperson and tell them that they should not cut the CAP appropriation in the USAF budget?  Do you have other ideas to help fund the organization?  Are you willing to donate more money yourself? 

Every volunteer organization I've belonged to or served on the board of has expected not just my time but at least some financial contribution as well.  And while, at least for the time being, we have an exclusive provider for CAP-branded items, there are plenty of other vendors who sell most of our other items, such as BDUs, dress blues, SAR gear, boots, socks, coats, etc.  And there is a healthy secondary market for many CAP-branded items on eBay and even here on CAPTalk. 

I realize many of our members are of modest means.  But we also knew, or soon knew, the potential financial burdens we would face by joining.  Frankly, I think back to WWII when many men and women donated not just their time but their air craft, fuel, and, even their lives in defense of our nation.  Our "sacrifice," if it is that, is far, far smaller in comparison today. 

In all seriousness, if you have better ways to help fund CAP, let's hear them.  Then talk to your chain of command and see if you can make them happen.

[FW]

Starting to think that a little too much corporate mentality is becoming the norm at National. The greed part is really disturbing.

It's not greed. CAP signed a contract, and this is part of upholding that contract.

Sure looks like greed.

As to the signing, we know who signed the contract. And I suspect if more people knew that it was intended to happen, it might not have.

But hindsight is always 20/20.

Um, the contract was signed after the National Finance Committee debated the issue, the NEC debated the issue and, then, the BoG agreed to the contract.  Who's signature was at the bottom line is irrelevant.  The entire leadership bought on to the process.  We were losing our shirt on CAPMART.  Vangard offered to take over and give us a commission on the sales.  We took the deal and that's that.  NHQ continues to work with Vangard to improve service.
 
Capt. Epp is quite correct in his assessment.  We need money without raising dues (which hasn't been done in years).  If anyone wants to give CAP $60k a year, I'm sure CAP can revisit the Vangard contract

[BuckeyeDEJ]

Disagree. Any IP work done on behalf of an employer becomes property of the employer. Any newspaper I've ever worked for owned my stories, my graphics, my photos, whatever, since I was doing the work for hire.

As a member of CAP deployed on a CAP activity, you are an agent of CAP. You follow CAP regulations. You are covered by CAP insurance (which could be considered a form of compensation). You, in essence, are working for CAP, albeit for nothing. Any intellectual property generated on behalf of CAP is CAP's property unless the corporation says otherwise.

As for a squadron emblem ("patch"): The emblems of subordinate units in a wing are to be approved by the wing commander, who is also the only corporate officer in each wing. Since the emblem will be worn on the uniform and used in other ways, it is the wing commander who approves/disapproves emblems in his/her wing. The emblems, we can contend, become CAP property.

Work made for hire is for employees.  And work made for hire only applies to employees acting in the scope of their usual duties.  So yes, a employee who is a journalist for his newspaper doesn't own the copyright in his articles.  But the circulation manager who is not expected to write an article could still claim ownership as that is not within the scope of his duties. 

Freelancers typically have to sign an assignment of their works to the newspaper as they are not covered by works made for hire as they are not employees.

The Copyright Act of 1976 defines "work made for hire":
Section 101 of the copyright law defines a "work made for hire" as:
1 a work prepared by an employee within the scope of his or her employment;
or
2 a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. For the purpose of the foregoing sentence,
a "supplementary work" is a work prepared for a publication as a secondary
adjunct to a work by another author for the purpose of introducing,
concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes; and an "instructional
text" is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional activities.

Copyright Office Circular 9 (http://www.copyright.gov/circs/circ09.pdf) boils down the factors.

All or most of these factors characterize a regular, salaried
employment relationship, and it is clear that a work created
within the scope of such employment is a work made for
hire (unless the parties involved agree otherwise).
Examples of works for hire created in an employment
relationship are:
• A software program created within the scope of his or her
duties by a staff programmer for Creative Computer Corporation
• A newspaper article written by a staff journalist for publication
in the newspaper that employs him
• A musical arrangement written for XYZ Music Company
by a salaried arranger on its staff
• A sound recording created by the salaried staff engineers
of ABC Record Company
The closer an employment relationship comes to regular,
salaried employment, the more likely it is that a work created
within the scope of that employment would be a work
made for hire. However, since there is no precise standard for
determining whether or not a work is made for hire under
the first part of the definition, consultation with an attorney
for legal advice may be advisable.

Using the US Supreme Court's test in CCNV v. Reid, I think a CAP volunteer would not be an employee so work for hire would not apply.  If they were a CAP employee, probably a different result, depending upon their job.

Unless there is some special provision of federal law that I'm not aware of concerning CAP members--who are volunteers, not employees--it is my opinion they would continue to own their IP.  Now, could CAP require, as a condition of membership, a written assignment of IP rights created by members while working on CAP missions and activities?  Sure.  But I don't remember signing any such document. 

So, absent a written assignment, I think it is unlikely that CAP could take ownership of a member's IP.  Might they have an implied license to use it?  Yes.  But outright ownership?  No.

Could I fashion a reasonable argument that CAP should own the member's IP?  Certainly.  Would it likely prevail?  Doubtful.  That's why we lawyers get the big bucks, to make arguments based on the facts and the law.     That's how the law changes.

The circulation manager, if he's called upon to write, would do so under the implied agreement that his/her content would be "work for hire," since it is an order given from his/her employer. Strict duty position definitions would not apply hre, though at a union shop, the Guild or Teamsters or whomever would unsuccessfully try to make suck a point.

But in the case of CAP, could an argument be made that members are indeed compensated for their service, even if it's something as simple as insurance? And if so, could a line be drawn to connect the dots to IP?

[cap235629]

In all seriousness, if you have better ways to help fund CAP, let's hear them.  Then talk to your chain of command and see if you can make them happen.

If the "funds" (a.k.a. kickback funded on the backs of members) were used to benefit ALL members and not facilities that only a small percentage of members will ever use, I am with you.  Use the "commissions" to offset the cost of administering an ID card program for instance.  Everyone gets a photo ID, everyone benefits...... 

Just a thought...

[Ned]

And remember, sole-sourcing insignia is a mainstream practice.

Try buying official Scout gear anywhere besides the Scout House.  And who gets a cut of the sales?  BSA, Inc.  (As well as the local council.)

Everyone with any significant amount of organization-specific stuff does it that way.

My wife buys me all nature of eBay-branded logoware and toys at the eBay company store.

Heck, even the CIA has a "doodad and trinket shop" at their headquarters that sells CIA branded merchandise.  (It has a hilarious sign reminding employees who are working under different identities to be careful in their credit card purchases.)

So does the FBI and the House of Representatives.

Uncle Sam thanks you for your support.

So does CAP.

[bosshawk]

Ned: funny that you should mention the CIA shop.  I have an account there, having worked for that illustrious organization for 23 years.  There also is an organization that a lot of us belong to, called the Association For Former Intelligence Officers. 

[lordmonar]

In all seriousness, if you have better ways to help fund CAP, let's hear them.  Then talk to your chain of command and see if you can make them happen.

If the "funds" (a.k.a. kickback funded on the backs of members) were used to benefit ALL members and not facilities that only a small percentage of members will ever use, I am with you.  Use the "commissions" to offset the cost of administering an ID card program for instance.  Everyone gets a photo ID, everyone benefits...... 

Just a thought...

NESA, HMRS, and The Blue Beret Facility do beniefit all members.  That you choose not to participate in these activities is not the issue.

[JC004]

Ned: funny that you should mention the CIA shop.  I have an account there, having worked for that illustrious organization for 23 years.  There also is an organization that a lot of us belong to, called the Association For Former Intelligence Officers.

But their things are expensive!  Freaking CIA monopoly.  At least they aren't required uniform items, however...

[Hawk200]

NESA, HMRS, and The Blue Beret Facility do beniefit all members.  That you choose not to participate in these activities is not the issue.

Not everyone has the means or the time. Not always a matter of choice. Life is what happens while you make other plans. The "choose not to participate" line is garbage, and smells like it.

Second, it doesn't necessarily benefit more than once. Especially when you're paying to go.

Third, I find it remarkable how many people don't seem to realize that you're still sending more money to CAP, just in a roundabout manner, and someone else is just adding on a fee. You're paying more for that roundabout, a lot more. 

Sole source may be a common practice, but's still a stupid one. Vanguard acts more like they own the rights to the insignia, instead of CAP. Vanguard isn't really concerned about quality, nor even quantity (unless it's money coming in). They've produced insignia that wasn't authorized (but became so later), or didn't even have award criteria.

We had people post on this board about how some Vanguard representatives have told them some things were or weren't authorized. Up until the website changed recently, there were blurbs on what various insignia were authorized for. It's none of Vanguard's business as to what their insignia is authorized to be worn on, or even authorized at all. That's up to CAP, and is regulated by CAPM 39-1. Which is what people need to be reading, not the Vanguard website.

All in all, Vanguard has gotten too big for their britches. That's a result of being that sole supplier.

That being said, I have gotten some of the things I needed from them, although not in a timely manner. I've found the fastest way for me to get something is order most of the military stuff I need, and add a few CAP items to the order. If it's just CAP items, it takes longer.

[Eclipse]

We had people post on this board about how some Vanguard representatives have told them some things were or weren't authorized. Up until the website changed recently, there were blurbs on what various insignia were authorized for. It's none of Vanguard's business as to what their insignia is authorized to be worn on, or even authorized at all. That's up to CAP, and is regulated by CAPM 39-1. Which is what people need to be reading, not the Vanguard website.

This was all too common with the bookstore and CAPMart as well,  nothing new there.

[lordmonar]

I'll not argue over whether NESA, HMRS, and NBB are a benefit for everyone or not.

But the real issue is that there are people here who just hate everything!

Vanguard, charges too much, they are too slow, they messed up my order.....I hate them!
Vanguard was telling people what is and is not authorised.....I hate them!


Well you know.....that's just tough!  Live with it.

I'm really sorry Tom is getting the dirty end of the stick.......but that is just the way it is.  Life sucks move on.

Personally I don't care one way or the other.  I've order from the Hock and got good service, I've ordered from Vanguard and got good service. 

Bottom line.....CAP gave Vanguard the exclusive license...and that is that.  What we had before was just terrible (and you all hated that too).  Vanguard got the contract and now CAP must hold up its end of the contract and close down Tom.   

Again....sorry....I hope some sort of arrangement can be made for Tom to cut his losses....that would be the honorable thing to do.....but legally there is nothing else anyone can do.

I too joined the save the Hock Shop facebook group....but it won't do anything because even if everyone joined it, it is about the law and popular opinion.