In my firm’s long association with designers, my most frequently-asked question is, “Can my client use my work without my consent if I haven’t been paid for it?”.
Many designers are asked for a “free pitch” in the hope of gaining a good contract, only to find out later that the potential client has used the ideas through a competing studio. Does the law give you any protection in this circumstance?
The Copyright Act says that copyright in a work can’t be transferred to another person unless that transfer itself is in writing and is signed by the owner (normally the author) of the work. This bare fact may lead to the assumption that your potential client in the above situation has no right to use the work but, unfortunately, it is not that simple.
Set limits around the use of copyright
In law, copyright is an ever-divisible right. It can be given exclusively to one party or non-exclusively to a multiplicity of parties; it can be limited in time, in the media in which it can be used and geographically. For example, your artwork can be used by your client for a period of 12 months in designated advertising in the State of Victoria. Any use by the client beyond these limitations is an infringement of copyright. Indeed, most clients will request a full assignment of copyright and, as legal advisor to a designer, I would resist that request unless adequate compensation is paid to the designer. Unfortunately, in my experience, I have found the hardest thing for a designer to do is say “no” to a client and they will often give away their valuable rights for an inadequate fee.
But getting back to our “free pitch”, whether or not the potential client has the right to use any part of your work will depend upon such things as what written or verbal terms were agreed between the parties and the extent of usage that the client has made of the works.
Use written terms
In as much as it may trouble the fledging designer to be firm with a potential client, it is essential that any work produced (whether it be for a free pitch or otherwise) be subject to specific, written terms which have been agreed between the parties. The client doesn’t necessarily have to sign the terms; if you send your terms to a client by email and say you will prepare designs on the basis of these terms, if a client merely accepts this, generally a court would agree that they are the terms of the relationship.
Many of you might not realise it, but lawyers were invented because people hate going to court! And you can avoid going to court by making sure that you have proper terms of business. Whether you are just starting out or are well into a business cycle, you should look closely at your legal relationship with clients and if you are unsatisfied in any respect, particularly in relation to your most valuable right – your intellectual property, you should seek appropriate advice.
Standard terms are acceptable
It never ceases to amaze me that many designers think they need to have a different set of business terms for each job, but that is not the case. All of our clients have developed a standard set of terms with a few variables to suit alternate purposes (e.g. how you handle copyright). Having standard, studio-specific terms can be a very cheap investment considering the prospective return and utility they provide for future negotiations with clients.