Protecting the Designer

Before working in the design industry a designer should be familiar with work agreements that should be included in a contract. Work agreements are legal documents that specify the ownership terms of the work created by the designer. Two common work agreements include a work-for-hire and an assignment. A work-for- hire agreement states that work created by the designer, or employee, while under employment belongs to the employer of the designer. The copyright belongs to the company. Even though credit may be given to the designer the company still owns the work as if it were theirs. An important fact to remember is that if a work-for-hire agreement is to be put in place it must be in a contract that includes the phrase work-for-hire, and the contract must be signed before any work begins.

If a work-for-hire agreement is not in place or included in a contract before work begins the work belongs to the designer of the work. If the client happens to want to own any of the work created by the designer, the closest kind of agreement to a work-for-hire they could get is an assignment. This agreement assigns ownership of the work over to the client or employer. They now have rights to the work as in a work-for-hire agreement. The difference is the duration of the assignment, which lasts 35 years. After 35 years the designer can own their work again.

Two other kinds of agreements that should be considered to be put in a contract include nondisclosure and noncompete agreements. These agreements help protect the privacy of information. A nondisclosure agreement is a contract that states certain information must be kept in confidence between a designer and a client. A noncompete agreement is an agreement between the employer and the employee that states if an employee should leave one company they are not to go to work for a competing company, and they are not to reveal any information about their previous company to their current company.

An example of a nondisclosure violation would be if a client reveals their trade partners to a designer, and then the designer reveals that information to one of their client’s trade partners. An example of a noncompete violation would be if an employer left the company they were working for, went to work for a new company that is in completion of their old one, and revealed confidential information such as  information about their previous employer's operations or trade secrets, or sensitive information such as customer/client lists, business practices, upcoming products, and marketing plans.    

Contracts and Legal Issues

As a designer, I believe it is very important to have a contract for any creative service provided to a client. It not only protects the designer, but it protects the client as well. I believe contracts are important because they put in writing what the designer and the client have discussed about a project. Once the contract is read and signed by both parties there’s no room for manipulation on either end. Contracts should include the following: The deliverables of the project such as what stages of a project are due and when, estimated costs, payment schedules, guidelines for reproduction of work, rejection or cancellation of project guidelines, completion/delivery of project, and an acceptance of agreement. Of course, more may be added if needed.

I also believe it is necessary to hire an attorney. They are the ones who can help make a sound contract and help get the designer out of any legal issues that may happen to arise with a client. It would be foolish not to have one. By hiring an attorney and creating a contract a designer can help protect themselves from non-payment issues. In the contract they can state that there will be a “kill fee” if the client decides to cancel or back out for any reason. A kill fee is a negotiated payment given to the designer if the project is "killed" or cancelled. That way the designer is compensated for the time, labor, and materials put into the project to that point.

A way a designer can prepare themselves for running their own business is to take business classes before they begin their business. This will give them a heads up on what to expect. Other ways a designer can better prepare include the above. Having an attorney and a contract in place for every project are very sound ways to protect a designer from legal issues. They are two musts every designer should have.

RFP and USP

Today’s business world uses a common way to look for a service through something called a “RFP.” This stands for Request For Proposal. An RFP is a document rigidly stating that the company sending it is looking for service. It is usually sent to multiple people as a “bidding” process. It asks to have the recipients answer very specific questions with very specific guidelines on a deadline. An RFP is meant to level the playing field and minimize bias. 

In the creative industry RFPs are becoming more and more frowned upon, even though some designers may be excited to even receive one and to be thought of. In my opinion, it is doing the opposite of what the sender of the RFP is looking for. They are looking for creativity and give no opportunity for the recipient to show it. I also think RFPs are an insult to the recipient because it is being sent to multiple people. It’s like saying t you aren’t good enough, and if they find someone better than you to do the job they will throw you to the side like everyone else. Taking the time and energy to reconstruct a selling pitch to respond to a RFP is a waste of energy if they decided to go with someone else. I just think an RFP is a very unprofessional way to look for creative work. Therefore, I believe RFPs can be harmful to the creative industry. They take away true opportunity of finding good creative work and devalue the meaning of design. A good, professional designer wouldn’t respond to RFPs. They would wait till a better opportunity came their way to do good work.

One way a designer can get themselves out there and advertise what they do is by coming up with a USP. A USP stands for a unique selling point. A USP is a short, concise phrase, or phrases, that state what you have to offer as a designer. They are short and sweet. If I, a graphic designer, had to come up with one it would be something like the following: Advertisement design, specializing in identity work. Local work. $175/hr.

Creative Licensing

When using creative assets, such as photography, there is usually a license that comes with them stating how the client or user can use the asset and the terms that determine the price of it. Two common license types include a royalty free license and a rights managed license, with the most common being the royalty free license. A royalty free license means that the user pays the creator of the asset once, and the asset becomes able to be used by the user for commercial use as many times as they want. When using a royalty free asset there is a restriction on how many users can use it. Also, the higher the resolution of the asset, the higher the buying price. A rights managed license means the assets are licensed per use, and the user may have to pay the creator on an ongoing basis depending on how the asset will be used, how long the asset will be used, and what the distribution of the project will be. The more extreme these situations are the more the creator gets paid. Basically the creator monitors their work based on what you plan on doing with their asset.

For an example of a royalty free license and how a price is derived, let’s say I am tasked with the project of creating t-shirt graphics for a client. The graphics will originate from a photograph from a stock photography website, iStockphoto. My client will need a quantity of 5k shirts printed. First, I find the photograph I want to use on the website. Then I will want to choose the highest resolution of the photo. In this case I chose a picture of a cat with an XXLarge resolution costing 50 credits. Under extended licensing options I want to choose the items for resale option since the photo is for t-shirts. This option adds another 125 credits for a total of 175 credits. If I am a pay-as-you-go member I can get a package of 300 credits for $440 with each credit costing $1.47. Therefore, my photo that I want to use would cost me $257.25.

The benefits of royalty free assets include an ongoing use after purchase, a less expensive price, and easy access. The challenges of using them include the risk of finding the asset being used by someone else since they are not exclusive and not being able to transfer or resale the asset to someone else when finished with it. The benefit of rights managed assets is being able to purchase exclusive rights for a certain amount of time or possibly purchasing total exclusive rights. The challenge, or downside, of using them is possible ongoing payments that are based on the factors of using it instead of its size as in royalty free assets.

If I have a career at an agency or company as a designer more than likely the company will buy these assets. The cost won’t come out of my pocket. But, it may be reflected in my pay. If I am doing freelance work then of course it will come out of my pocket, and I will have to figure it into the expenses and the client’s cost of the project. On the flip side, if I am the one using the licensing, then of course it will be my means of protecting my work and making a profit/living.