22 Replies Latest reply on Apr 17, 2010 3:38 PM by pchinique

    Question about credit/copyright.

    pchinique Level 1

      I'm not sure this is the right place to ask, but I'm not sure were else to go.

       

      I have done a huge design in illustrator for a pattern of a zoo, all in vector. The design is almost done, but need some final touches. Now my client has a company who wants to buy his product with my design. The problem is this company wants to make changes in the design, using his own designers, before purchasing the final product. I'm not sure of the amount of changes they want to do, but I feel that I can't take credit for the design if it gets change a lot.

       

      I'm just looking for some advice here. I've been designing for only 2 years and this is one of the biggest projects I had so far, so for me is a big deal to be able to add this to my portfolio and take credit for it. How other designers go with situations like this? Should I charge a fee to give my credit away? I am getting paid for the design though, but I would really like to keep credit for it too, after all that hard work....

       

      Thanks a lot for your advice in advance.

        • 1. Re: Question about credit/copyright.
          JETalmage-71mYin Level 3

          I'm not a lawyer. The following is my opinion, based on some reading and alot of seat-of-the-pants experience.

           

          In the terms of the sale you negotiate with your client, you can stipulate whatever the two of you can gain agreement on.

           

          First, understand: no one here has seen the "design" in question. You have to decide whether the work you've done is truly an original work (essentially an illustration) and not just another common design. Many designers tend to think their work is worthy of copyright concern, when in fact it is nothing more than another basic layout like many others. One can argue that such a thing is original; but few would argue that it is something worthy of copyright worry from a practicality standpoint.

           

          So the following assumes it is an illustraton worthy of copyright concern. The concerns include:

          • If the new owner amateurishly alters the artwork, that reflects poorly on you and thereby potentially injures your reputation. This should be part of your decision criteria, as to whether you sell the piece with full ownership rights.
          • You surrender all rights to the design. If you do something very similar for someone else, it's conceivable that you could be the recipient of a cease-and-desist warning downstream. For example: Imagine you were the individual who created the "brilliant and original" Pepsi logo. Imagine you sold it to Pepsi with full ownership rights for small potatoes way back when Pepsi was a backyard operation. So 50 years later, after Pepsi has acquired huge equity in its brand, you, being a one-trick-pony, do something strikingly similar for another soft drink company. Except for the words and font, it's arguably mistakeable for a Pepsi when printed on the product. You wouldn't be surprised in that case for Pepsi to make you and/or your new customer recall all the stock off the shelves, and cease from ever using the new design.

           

          Understand, when you sell a truly original, copyrighted piece with full ownership rights, it's no longer yours. The value of a graphic has much to do with how it is used, and by whom. You may draw something for a pitance of a fee for a small-time client, and sell it to them in full. They may, 20 years downstream, attain the brand recognition of Coca-Cola. That design certainly would then have infinitely greater intrinsic value than what you were originally paid for it. Guess who's out of luck?

           

          Selling a graphic work expressly with full ownership rights is called "work for hire." Practically, it's the same thing as if you were the client's employee (without the benefits) when you created it. The client owns it and you have no future rights to it that you didn't stipulate at the time of sale. Work for hire is strongly advised against if you are making a living as a freelance illustrator. Works worth copyright should be sold as clearly defined usage rights. 'I will create that illustration for you for $5000, amd sell you one-time usage license as a full-page ad in magazine X. Additional usages, if any, will be negotiated at the purchase time, at additional fees of [for example] 50% of the initial usage fee.' Or something like that.

           

          I personally always sell full ownership of identity graphics (logos). But I charge accordingly.

           

          If you intend to make a real living as a freelance illustrator, you have to learn this part of the business side. It's just the naive who think in terms of "well, it only took me a couple of days to do it; I'll just charge for a couple days-worth of hours." It just isn't that simple if you want to survive.

           

          Back to your case-in-point: If you consider a full sale of the design in question is being fairly compensated, just politely explain to the buyer that you would very much like to retain rights to indefinately use your unaltered original as a sample of your work. That's a perfectly reasonable request, and one I always stipulate, even when selling identity graphics. Whatever you agree to, get it in writing.

           

          JET

          • 2. Re: Question about credit/copyright.
            [scott] Level 6

            What's your contract state about ownership?

            • 3. Re: Question about credit/copyright.
              pchinique Level 1

              Thanks a lot for your answers.

               

              Really, all I want is to be able to say I did this design and add it to my portfolio. The problem is that if at the end the design is going to be change drastically, who will be consider the designer of this piece?

               

              I'm getting paid a fair amount, I think, but it seems to me that this other company is offering their own designers without charging my client for whatever changes they might do, because they are purchasing the final product for resell so that's another reason why my client prefer them to do the changes they want instead of keeping me around to finalize the whole thing.

               

              We haven't sign any contracts, I know, I know... I'm just learning through the process.

              • 4. Re: Question about credit/copyright.
                pchinique Level 1

                Ok so I see 2 options here, I haven't sold the design yet. So I'm thinking let the client know that I'll keep working on the design until is finished and keep the right to make any changes in the future once the original final file is in his power or sell all my rights to ownership of this design and forget about getting any credit for it or do any future changes to it.

                 

                Either way I need to put it clearly in a contract, do I need to get a lawyer to do this contract?

                 

                Thanks

                • 5. Re: Question about credit/copyright.
                  Wade_Zimmerman Level 6

                  You might consider this

                   

                  Make it known you think you can finish the design t the reseller likes and needs and think they should give you the opportunity of finishing the design.

                   

                  Then also let it be known that this is your work and expect to be credited if the alterations meet to your standards but reserve the right to withdraw
                  aspect of the sale should you find the design is altered so much that you find it no longer meets your standards and or stye of design.

                   

                  Now there is a bigger issue should you seek credit or not which is a percentage of the sales from the marketing effort after all if they could have done this on their own they would have done that already.

                   

                  so regardless of whether you want to have credit attached t the item or not there should be some consideration fr compensation from the sales ina percentage of the sales. That is usually done above and beyond the costs

                   

                  I take it this is like a tee shirt kind of thing?

                  • 6. Re: Question about credit/copyright.
                    JETalmage-71mYin Level 3
                    Really, all I want is to be able to say I did this design and add it to my portfolio.

                     

                    Then, as already suggested, simply say that, first verbally and then in your sales agreement. Put the designs in your portfolio before anyone else alters them. Whomever owns them after you sell them could claim to have drawn them from scratch; but they'd just be lying. You don't have any practical control over that.

                     

                    I'm getting paid a fair amount, I think...this other company is offering their own designers without charging my client for whatever changes they might do, because they are purchasing the final product for resell so that's another reason why my client prefer them to do the changes they want instead of keeping me around to finalize the whole thing.

                     

                    Not sure I'm understanding that. (...This other company? Offering their own designers...?) But it sounds like your customer wants to use the work you do as base "template" designs to be altered by someone else in order to sell an undetermined number of "individualized" products to multiple customers. If so, that's just his business model; there's nothing inherently wrong with it. You just have to decide what your business model is going to be for this kind of work. Will your terms pay you enough for you to become rich, too?

                     

                    The client is probably only interested in purchasing original designs as work-for-hire so that he is entirely unencumbered with any usage restriction or with tracking of sales-based royalties. You just have to decide if you want to sell your work that way. If you don't, he'll go elsewhere. There are plenty of "starving artists" who will work that way, for cheap. (They just don't last long.) If you do, think your own business model through, and charge appropriately, understanding the scope of the usage to which you are selling full ownership right. A piece of commercial artwork deemed "good enough" for potential hundreds or thousands of resales is intrinsically "worth more" to your customer than the same piece intended only for a one-time use, or than inferior quality artwork that just won't sell.

                     

                    If the above schenario is what you're describing, it might be just another occurance of this very common scheme: Your client wants to use you as a source for cheap royalty-free, unlimited use "clip art." But he doesn't really want clip art; he wants:

                     

                    • custom artwork that is unique to his offerings.
                    • to pay clip art prices for original commissioned artwork.
                    • to avoid the costs involved in hiring a full-time creator.
                    • to profit from unlimited repeating resale of top-draw artwork he obtains at clip art prices.

                     

                    If that's the scenario, it is certainly not original. Such attempts are legion. Those that are somewhat successful are continually looking for new artists ("fresh meat" if you will), because even stupid talent eventually wises up (or gets a day job).

                     

                    On the other hand, it could be a lasting and profitable relationship if:

                    • Your client is reasonable and understands you have as much right to "get rich quick" as he does.
                    • You aren't too "prima donna" about the "masterfullness" of your artwork.
                    • Your fees are appropriate to your work's commercial value.

                     

                    This being a public forum, you seem typically shy about describing the actual project, so anyone answering is just guessing. Your veiled description might also parallel this entirely different kind of schenario:

                     

                    Imagine a potential client owns a restaurant chain. He wants a professionally designed and/or illustrated menu consistent with the look-and-feel of his chain's identity. But he needs the individual stores to be able to edit the menu on-the-fly. He's been working with a talented freelance illustrator/designer (which may or may not have also created the identity graphics). But the freelance gets offended at the notion of providing something editable, because:

                     

                    • He's been working with this client for a long time.
                    • He's been doing every graphic thing for this client, down to routine edits, and is now dependent upon this "steady work."
                    • Because of the frequency of this "bread & butter" work, he's been "cutting this client some slack" in fees across the board.
                    • He's now afraid of loosing the relatively steady "bread & butter" editing business, because he's effectively cut his own prices even on the original work.
                    • He just can't tolerate the idea of a clerk in a restaurant who knows nothing about typeography "wrecking" his masterpiece.

                     

                    In that scenario, the prima-donna "artist" just needs to get a clue, or find another line of work. That kind of autonomous editability is a very legitimate need of many businesses of all sizes, and there are increasing options for such businesses to obtain it at very reasonable cost. That kind of editability is no longer even limited to textual changes. It is becomming quite common for a design agency to provide clients real-time editable sales fliers, brochures, etc., often with an on-line customization and ordering solution. A small-shop freelance page designer who can't accommodate that is already in trouble.

                     

                    I'd recommend you Google for Graphic Artists Guild, and buy a copy of its Pricing and Ethical Guidelines publication. Whether you actually join the GAG is up to you, but the document can help clear up alot of business model confusion for a freelance.

                     

                    JET

                    • 7. Re: Question about credit/copyright.
                      pchinique Level 1

                      Thanks,

                      This is a design for  a pad that will go on tables for toddlers and little kids.

                      • 8. Re: Question about credit/copyright.
                        pchinique Level 1

                        Here is how the design looks like so far.

                        • 9. Re: Question about credit/copyright.
                          Jacob Bugge MVP & Adobe Community Professional

                          pchinique,

                           

                          I am afraid the link did not work (or the design is very small)..

                           

                          You may have used Attachment, which is currently disabled. There is a note on top of the Forums comments forum:

                          http://forums.adobe.com/community/general/forum_comments

                          Unfortunately not on the other forums where it is more relevant.

                           

                          You should be able to upload using the Camera icon, or link to something on your own site or a free upload site.

                          • 10. Re: Question about credit/copyright.
                            pchinique Level 1

                            Well the oral agreement was I do the whole design, no just a template, they print it and sell it. This is a design of 75x42 that will go on pads for tables for use by toddlers and little children. They sold other pads with other designs to places like Wallmart, Baby'r us.....

                             

                            My client now has a new baby's company who is interested in buying his product with my design (which is a zoo design) but they want to do changes to it and even though I haven't finish this design, my client agrees that the should continue with the changes they want to do.

                             

                            Here is the situation that I'm pretty much think is going on. My client don't want to pay me more for the extra time that it'll take to finish whatever changes the "baby's company" wants. This "baby's company" offers their own in house designer to do the changes they want in exchange of maybe exclusive rights to resell this product. It's a 100% win situation for my client, he gets his product sold and cheap design.

                             

                            I get nothing, just pay for the hours it took to this point, with actually I haven't get paid yet. My client owes me $700 so far and after sending the invoice a while ago I'm still waiting so to me that says something.

                            • 11. Re: Question about credit/copyright.
                              pchinique Level 1

                              removed by me

                              • 12. Re: Question about credit/copyright.
                                Jacob Bugge MVP & Adobe Community Professional

                                pchinique,

                                 

                                A rather important question is whether you have actually transferred any rights to the client.

                                 

                                Have you transferred the design in a usable and editable form? Possession is crucial in questions of ownership.

                                • 13. Re: Question about credit/copyright.
                                  pchinique Level 1

                                  No, the design is still in my possession, to this point my client has no rights over my design.

                                  • 14. Re: Question about credit/copyright.
                                    pchinique Level 1

                                    They do not have the original files either.

                                    • 15. Re: Question about credit/copyright.
                                      Jacob Bugge MVP & Adobe Community Professional

                                      pchinique,

                                       

                                      No, the design is still in my possession, to this point my client has no rights over my design.

                                       

                                      Under these fortunate circumstances I would suggest your sitting on it until you have fully considered the new knowledge.

                                      • 16. Re: Question about credit/copyright.
                                        pchinique Level 1

                                        Thanks a lot for all your great advice. I will certainly won't let this thing go out of my hands without proper compensation.

                                         

                                        Just one more question, what recourse would I have if the "baby's company" starts the design from scratch and copies my design, but with some changes and some other original work?

                                        • 17. Re: Question about credit/copyright.
                                          Wade_Zimmerman Level 6

                                          Most important thing is that they pay you. it is very important that the professional get paid. Secondly since conditions have change you can also stipulate changes to the agreement on your part.

                                           

                                          If they are going to buy this and need your art then you should ask for the opportunity of discussing the future with the new producing company.

                                           

                                          The reason for this is that if they are buying this then they are happy with the art they want to make changes but are not going to change the whole design since they could probably easily come up with a whole new design themselves. What this does for you is now gives you possibly two clients and perhaps you can work on finalizing the design under their supervision and if they already a successful company in this field then you can also learn from then get a product that you did entirely. If you are successful at negotiating with them they will more than likely appreciate it and might even recommend you as someone one could deal with rather than someone you simply can take advantage of in the work environment.

                                           

                                          You want to open communications with potential clients but you don't want them pushing you round either. This is not so much a legal issue as it is a professional issue. If they give you good money to get lost then fine you can't deal with them but let them know you are using the original design asa sample and you will reserve the right to make claim to the authorship whether they like it or not. You don't need their agreement you just tell them the conditions and once they sign a check to your client it is binding be it before or after you make this stipulation.

                                           

                                          I once wrote a letter to a large company that produced a new product at that time called carbon fiber amongst other carbon products, all I did was informed them as to what I had agreed to as to money and that if I did not receive payment accordingly I retain all rights and do not release the design to their agency or to them.

                                           

                                          The agency thought what the hell is that let him prove it in court and their client told them the letter was the proof, those were my terms not theirs and since I have spoken well before any work on the design was actually produce there is not much point in denying it, unless you want to purger yourself in court, something the¥ were not willing to do and the¥ do not do business that way.

                                           

                                          Now these people made it clear there was no future working with them but so far your client has not done so so now is the time to discuss this with them and their client. Though there are a lot of crumbs out there you really have to explore this issue with the clients and in a level headed way.

                                           

                                          If they don't pay you then you know what to do, if the new producer tries to copy your work and changes some things without your consent then you know what to do. But make certain you put it in writing and send it to them both even after you agree to what ever terms you agree to write a letter confirming the term that you are agreeing to and if they don't agree then they will have to come up this an entirely different design.

                                          1 person found this helpful
                                          • 18. Re: Question about credit/copyright.
                                            JETalmage-71mYin Level 3
                                            I get nothing, just pay for the hours it took to this point...I'm still waiting so to me that says something...the design is still in my possession...my client has no rights over my design...They do not have the original files...


                                            Now we're getting somewhere.

                                             

                                            Well the oral agreement was I do the whole design, no just a template, they print it and sell it.

                                             

                                            The operative (and unfortunate) word here is "oral." If you don't have anything in writing (a signed estimate that clearly defines the work being comissioned)--BIG mistake--you have little to stand on. (Technically, oral contracts are binding. But it always comes down to who, if anyone, can prove what was orally agreed.) This "client" can just bail out on you. But you have the advantage of having the artwork; and the "client" has no rights to its use at all.

                                             

                                            At this point, I'd send the "client" a polite, but succinct, to-the-point, and business-like letter stating:

                                             

                                            • What the original agreement was, including the scope of the intended use.
                                            • That this was not work-for-hire and that, per industry-standard practice, you do not surrender copyright for your original illustrations.
                                            • That there was nothing stipulated in the original agreement about allowing a third party to create derivative works from the original. (Understand, part of your "intangible compensation" for a project like this is its occurrance in major retail outlets. Sub-standard alteration by someone else effectively reduces your "agreed-to" compensation.)
                                            • That if the "client" now wants out of the agreement, you must be compensated for the work done so far. (This is often pre-stipulated and is called a cancellation fee; commonly 50% of the originally agreed fee, although it can be anything appropriate. Cancellation fee terms usually state that the cancelling party does not receive rights to the unfinished work.)

                                             

                                            Personally, either before or immediately after (depending upon how damaged the relationship already is), I would consult my lawyer. Such a letter carries much more weight when sent on a law firm's stationery, and it keeps you out of the fray so you can get on with paying work. If (as I suspect) you do not have a relationship with any law firm, I would tend to that right away. You may very well just end up not being paid for this project, and keeping the artwork--live and learn. (We've all been there...I could tell you stories.) If you do end up "eating" this one, at least you've got a decent piece for which you already know some of its marketability--and you even know of some potential new clients to replace the present one you may loose over this.

                                             

                                            The lessons learned from this should include:

                                            • The need for a legal connection in case you ever need it. That does not have to cost alot. It does not mean you have to pay a regular retainer fee. Just find an honest and trusted lawyer interested in handling such trivialities for you on an as-needed basis. Most such issues are resolved with a simple "we mean business" letter. Understand, when it gets down to brass tacks, lawyers get a significant portion of the settlement as part (if not all) of their fee. Getting 2/3 of your expected payment is better than getting nothing, but it's far better to avoid such difficulties with routine and sound business practices.
                                            • A basic part of routine and sound business practice is the need for standard business forms. You should have at least a standard "boiler plate" quote form on which simple, straightforward language defines your standard terms regarding copyright, cancellation, etc. You may need several "boiler plate" blurbs pre-written for several different kinds of projects you repeatedly take on. If you don't already have a solution, I would recommend FileMaker Pro (it's an affordable, powerful, easy to learn, use, and customize database program). You can use it to build your estimates, invoices, customer database, and many other things, including solutions for data-driven projects. FileMaker has become my favorite "graphics program."
                                            • Do NOTHING without a signed agreement.
                                            • NEVER tolerate non-payment.
                                            • Projects involving alot of time may require an agreement with stages; non-refundable incremental payments due upon completion of specific "milestones."

                                            JET

                                            • 19. Re: Question about credit/copyright.
                                              pchinique Level 1

                                              Thanks again for all that advice, you guys are awesome.

                                               

                                              I hope the negotiations go well and I get paid for it. Other wise I'll try to sell my design to some one else.

                                              • 20. Re: Question about credit/copyright.
                                                Wade_Zimmerman Level 6

                                                I think you will be successful but a letter at this time expressing your concerns are an important issue. Going to court is a last resort.

                                                 

                                                Give them a chance to prove they are professional, if they prove otherwise you always have the option not to get involved in the future.

                                                 

                                                But most important treat this strictly as a business transaction and not a personal matter that will effect your day to day life. Keep emotions out of it.

                                                 

                                                You win some and you lose some, fight for it but in a good way and be prepared to move on and learn from it.

                                                • 21. Re: Question about credit/copyright.
                                                  Mr. Met Level 3
                                                  Most important thing is that they pay you. it is very important that the professional get paid. Secondly since conditions have change you can also stipulate changes to the agreement on your part.

                                                   

                                                  Correct.

                                                   

                                                  Here is the rider to my standard design quote form which I have uploaded along with art release form.


                                                  Estimates: Fees shown are estimates only. Final fees and expenses shall be shown at invoice. Estimates good for 30 days from date issued.
                                                  Payment: All clients will remit 50% at contract approval; 50% balance upon completion of project. Any other arrangements must be in writing. The fee to cease production on any jobs already in progress is 50% of quotation or actual hours worked, whichever is greater. Interest on open accounts is 1.5% per month after 30 days.
                                                  Expenses: Outside purchases and expenses not specifically mentioned in quote will be invoiced at cost plus 30%.
                                                  Changes: Client shall be responsible for making additional payments for changes requested by client in original assignment. Client also agrees to pay all fees or expenses that were orally authorized in order to progress promptly with work.
                                                  Artwork: All editable digital production files created or edited by OnPoint Image & Design or their subcontractors, including websites, are the sole
                                                  property of OnPoint Image & Design and related companies. Client becomes sole owner of editable digital files only after payment of transfer fee agreed upon by client and OnPoint Image & Design and related companies under separate contract.
                                                  Disputes: Client agrees to binding arbitration in Westchester County, New York, to settle any disputes related to this contract including, but not limited to, services rendered, payment, and intellectual property ownership.

                                                   

                                                  art release.jpg

                                                   

                                                   

                                                  onpointdesignquote.jpg

                                                  • 22. Re: Question about credit/copyright.
                                                    pchinique Level 1

                                                    Thank you. This is very useful. We definitely need to have a written agreement.