I recently faced a difficult situation with one of my clients, which has been ambiguous and difficult from the outset. I’m sure it is not unusual situation for fledgling and inexperienced freelancers who are constantly being taken advantage of in the form of free labor ‘opportunities’. After discussions with professionals in the design, photography and advertising fields I have learnt a thing or two about dealing with clients:
-Draw up a contract after ANY discussion of work to be done.
-Communicate your rates and any costs that may be incurred BEFORE commencing work, even at the brainstorming stage.
-Write down what the client wants clearly and have them understand what they are asking of you and that anything beyond this may incur more costs.
-Independent T&Cs are worth developing.
I wish this side of design was more of a focus of my tertiary studies.
For those curious, I had agreed to make an image that was initially intended as a one off print for a gift (organised through a third party) for which I would not charge as it would be a favour.
After the image was supplied the client decided they liked the image so much they would without permission order and reproduce said image as a merchandising item for their business, I was not consulted about this at all as it was assumed that I would simply be grateful for the exposure. Which I was, however disappointed to have been left out of the conversation, I suggested to the client that an invoice might be appropriate at this stage but was told to hold off as they ‘had more work for me’ and would prefer a bulk invoice at the end of our interactions (no written contracts or briefs for future work were drawn up).
The merchandising printed without permission or attribution in the volume of 3000.
I began considering how best to price the image that I hadn’t really thought of as being a commercial product until this point. Unsure, I contacted a friend of a friend who runs their own studio. This was his careful response:
“Hiya – that’s a tricky situation. Without knowing the context or nature of the relationships/agreement around what she originally did… It’s especially hard to charge someone after you’ve agreed not to, but she might be able to come at them and say she deserves compensation because they’re using her IP in more ways than she originally agreed. The coin has two sides: had she charged for the original, they might not have paid, but had they said the design would be used for coasters and then on sold as a souvenir of this emerging brand, then she likely would’ve charged… Without anything in writing prior, it’s going to be an awkward conversation. I would think if she wanted some payment then she has year options: 1. Determine how many hours she put in, assign herself a rate (perhaps $25-60 would be suitable for a student) and the calculate a rate. 2. She might offer them a commission per sale instead; ie half the sales of all shirts; 3. If it’s a good cafe, she might offset any payment with free food or vouchers (which cafés often like as it’s an effective discount anyway given their margins).”
I felt assured within my rights to charge at this stage and sent them a per hour invoice at the rates I usually use for one of works. I did not even consider asking for compensation for image misuse until AGAIN it was reproduced as packing branding without my consent with the invoice remaining unpaid.
The packaging branding I did not consent to.
I would have been overjoyed to have my image associated so closely with the brand if I had:
a) Been paid for the copyright of said image.
b) Been involved in any decisions made about the use of my image and approved them.
c) Had sufficient attribution made of the image to myself.
The Arts Law Centre of Australia states:
“The general rule, unless there is an agreement to the contrary, is that where a person commissions someone else to create copyright material, the creator of the work owns the copyright in it, not the client.
Generally, even if there is no written or express licence, the client will have the right to use the work for the purposes for which it was commissioned. Therefore, the client will generally not infringe copyright in the work by using it in one of the ways agreed between the parties, even if they haven ʼt yet paid for it. The copyright owner will, however, have the right to sue for the money owed.”
And also :
“Sufficient acknowledgement to the author is required, the author has a right of attribution – the right to be clearly and reasonably prominently identified as the author, in any reasonable form.”
It is unfortunate but I believe that little care has been taken to uphold my legal rights as an artist and professional because the client is aware of my financial inability to take legal action. How often are naive, idealistic and poor creatives taken advantage of like this? Far far too much, I’m sure.
Time to write a letter of demand, in time much rather spent sketching..
See also:
sketchyfeelings 