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Part of the announcement made by Jon Desmoulins at the WSE website details Lindsay's claims:
AS TO THE FACTS
After reviewing all the documentary evidence, consisting of two (2) transcripts. Further there are testimonies, given before the arbitrational board on Sunday, October 14th, 2007 by the Claimant and Defendant.
Below are the statements of fact and our findings:
On April 26, 2007, Ms. Druart purchased an advertising campaign from SL Marketing which included three (3) banners and a package of 390,000 impressions. Mr. Desmoulins and/or SL Marketing have agreed to refund the purchase price for the impressions and Ms. Druart concedes that she received one banner that was acceptable.
Thus, the matter before us includes Ms. Druart's claim that she is entitled to a refund for the two remaining banners, which she alleges were not prepared in accordance with her wishes and were usless.
RECONVENTION
Mr. Desmoulins and/or SL Marketing argues that it could not refund the funds because it had already paid a designer. However, Mr. Desmoulins admitted that the designer was in fact SL Marketing's employee.
Thus Ms. Druart's claim is properly against SL Marketing and not against the designer, where it otherwise might be had the designer been an independant contractor. This case is no different than an employer paying a simple wage to an employee, and does not justify passing the cost of errors resulting from miscommunications to the customer.
AS TO THE APPLICABLE LAW
Second Life® knows - only - the Terms Of Service (TOS) and Community Standards, made up by Linden Lab and/or Linden Research Inc.
No specific national law of any real life state is applicable to contracts, agreements and trading in Second Life®. Therefore international law, as stated in the UNIDROIT Conven-tions of The Hague - made by the International Institute for the Unification of Private Law - on the International Sale of Goods (July 1st, 1964) and on the Formation of Contracts for the International Sale of Goods (July 1st, 1964), must be used as a reference to how contracting parties in Second Life® should behave towards each other. The international law is to be applied by analogy. I recommend Linden Research Inc. and/or Linden Lab to incorporate rules and regulations about trade between parties in Second Life® in their Community Standards.
MOTIVATIONAL ASPECTS
The ruling could go in favor of Ms. Druart on several grounds, the most simple being that SL Marketing agreed to credit her the cost of the two contested banners for future use, thus assuming the costs it would take to create two banners for her in the future. Reason finds no refuge then in SL Marketing's denial of a refund should Ms. Druart believe it is simply in her best interest to receive that same value now in the form of a monetary refund and choose not to use SL Marketing in the future.
Mr. Desmoulins and/or SL Marketing argue that refunding was not possible, because a designer had already been paid. However, Mr. Desmoulins admitted that the designer was in fact SL Marketing's employee. Thus Ms. Druart's claim is properly against Mr. Desmoulins and/or SL Marketing, and not against the designer, where it otherwise might be had the designer been an independant contractor. This is no different than an employer paying a simple wage to an employee and does not justify passing the cost of errors resulting from miscommunications to the customer.
There appears to have been lots of miscommunications between Ms. Druart and Mr. Desmoulins and/or SL Marketing. Ms. Druart is no more responsible for those miscommunications then Mr. Desmoulins and/or SL Marketing. She is at fault for originally sending an incorrect logo, however, it appears that (employees of) SL Marketing took it upon itself to insert slogans into banners that were not approved by her, thus it should have redone work based upon its own errors, regardless of the incorrect logo.
Ms. Druart paid SL Marketing to perform a service. Mr. Desmoulins represents and is responsible for all liabilities of this company as its owner. Once SL Marketing found that it would have to redo some banners after frankly forging ahead and creating them without sufficient input from Ms. Druart, it appears that it simply chose to stop attempting.
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Normally I would overlook this as a simple dispute between a customer and a service provider and say nothing about it, but considering I have worked in advertising sales, production, web graphics, and related industries for many years now, I thought it might be interesting to comment on this.
From what I gather with no pre-existing knowledge of this subject, Lindsay Druart purchased three web banner packages from SL Marketing, but only one banner design was finalized and approved... the other two were incorrectly designed on the first proof and the SL Marketing designer refused to provide revised banners.
There are a couple problems I see on both sides here. First of all with SL Marketing... I find it amazing that they actually include banner design in their impression purchase price.
The reason I disagree with this is - especially with design - customers vary ACROSS THE BOARD! A super-complex banner design may be approved on the first proof with one customer, while a very simple banner design for another client may take six or seven proofs to get finalized. Some customers are very easy-going, some are very difficult. In short, banner production cost (at least in RL) varies for an advertising agency or publication depending on how difficult the customer is... because a designer is working a variable amount of time and putting in a variable amount of effort for each project.
At SL Reports and other real-life web businesses I always separated the costs for impression purchases and banner design. For instance I will sell 18,000 impressions of a small box banner on SL Reports for L$18,000. If you buy it, you either have to build the banner yourself or pay someone to do it... I don't care which one as long as it works and you send it to me, without me having to modify it in any way.
If you want me to do it, fine, but you get to pay for how complicated you are. Animated GIF ad production will cost you a separate L$5,000 and with that you get two proofs. If you want or need additional proofs, fine, but you're going to pay L$1,500 for each one.
You wouldn't imagine how well this process works in making a difficult customer an easy one!
In any event one of the problems we see with packaged ad space PLUS design sales is a lack of quality in banner production. Your designer is probably thinking, "I"m not going to spend five hours on something I am not being paid any extra for."
Another problem you see regularly is lack of communication from the customer. You have no idea how many people send a logo and a SLURL and THAT'S IT! (and half the time they forget the SLURL at that) LOL
So this is when you see happen what apparently happened once or twice in the LNL & SLM case, a creative designer has to come up with ad copy to fill the empty space. Now granted, many designers have a "I can word it better than you" attitude and change customers' ad text without asking... who knows what the case was here.
With advertising in particular, I advise advertising professionals and customers BOTH to demand a detailed concept and design session prior to production. Sit down (or in SL, IM or meet in-world) and discuss pixel by pixel how you think the banner should look, and what EXACTLY it should say. I would imagine if that happened in this case then it would never have gone before SLBB arbitration.
In any event, I am curious how this even GOT to the SLBB level. It seems to me... based on experience with every single ad I have designed or account I have sold... that SLM would have bit their lips, fixed the banners, and just shut the hell up so they could keep their money and build a longstanding relationship with a new client.
Does this come back to perhaps Lindsay made some off-color remark that pissed off the designer and led him or her to refuse to work on the account? Or is this simply a matter of the designer saying: "Look, you're being difficult, I'm not making enough money off of this, and I have better things to do... deal with it."
Who knows.
It seems like we had hard-headed people on both sides here, but I am leaning towards perhaps there being more fault on the end of SL Marketing. Advertising professionals need to anticipate that they will deal with situations like this every once in a while and do what is needed at that time to correct it. If it happens often, change your pricing structure... charge extra for design... do what is needed so that you don't lose the sale or end up having to issue a refund.
I have issues with the SLBB that I won't go into in this post, but I have to agree with their decision on this one. I'm glad Lindsay got her refund.
Communication in business is key. Looks like in this situation communication was lost somewhere in the design process.
I think we would all be curious to know what really happened.
Xavier Mohr
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