Coping With Clients Who Use Your Concept Design — Without Paying (Page 2)

First, it’s important to recognize that there are three types of clients who will ask for spec design:

The Ignorant. These people are clueless about the value of design as a concept, as a profession, and as the voice of their brand. They’re equally clueless about the concept of branding and how it relates to their business and market. They’re the type who pat you on the head and roll their eyes when you try to explain that Photoshop doth not a designer make. In most cases, they look down upon you, considering you a slacker playing with crayons in avoidance of a real job. You hold little value to them beyond the fact that they simply don’t have the time to learn to use the tools of your trade. They feel that, had they merely the time to read Adobe Photoshop Classroom In A Book, they would be every bit as capable as you of completing their project. Paying $350 an hour to their attorney just to courier a document to the courthouse is a good deal to them, but they balk at freelance design rates over $12 an hour.

Tactics for dealing with the Ignorant client who asks for spec designs:

• Do your best to convince them that they don’t need spec design, to use your portfolio instead.
• Walk away at a brisk pace. Be polite, thank them for their interest in you, express a desire to work together on future projects, but extricate yourself from the situation. Explain that designing on spec is too risky because you will have already done all the work without any assurance of being paid for your effort and time. The Ignorant client won’t understand or accept any of this, of course, but say it anyway, for your own peace of mind. Besides, if enough designers say it to the same client, it might eventually sink in. Using the phrase “it’s against the studio’s policy” often helps with the Ignorant client–especially in non-profits and other organizations that deal with the government. There, people have a tendency toward an innate understanding of bureaucracy and the unbreakable, holy Law of Policy.
• Find something in your portfolio that looks similar to their brand–possibly for a competitor. This need not be what you really want to design for them; it just has to stand in for the real work until you’re awarded the contract. There’s a risk with this tactic, however. If the client awards you the contract because they like that specific design, and it’s already in use by a competitor, you’re in hot water. You’ll have to convince the client that the spec design is not what they really want, that your new proof is the way to go.
• Make up a fictitious brand similar to the client’s, in the same business as the client, and spec design a project for that made-up brand. It has the same effect as pulling a pre-existing piece from your portfolio, while preserving your ability to hand over that design if requested. Of course, this tactic carries the same inherent risk of being ripped off as designing something specifically for this prospective client–albeit to a slightly lesser extent. The only reason for advocating use of a fictitious brand is the fact that the Ignorant client has a tendency to think anything with her organization’s name on it belongs to her organization (this is known as “Right of Ignorant Domain”). Thus, if you provide a concept or proof incorporating their logo or any element they legitimately own, you increase the risk of them using your work even if they don’t hire you.
• Failing all of the above (I honestly recommend you return to the “walk away at a brisk pace” tactic), make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it–including and especially your designs–will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights.

Ignorance and stupidity are two different things, as are consequential and deliberate ignorance. In many cases, Ignorant clients can be educated and converted to Good clients. In just as many other cases, clients are deliberately ignorant (or stupid), and you might as well be talking to a wall. Learn the difference between the two, and don’t bother with the latter.

The Dishonest. Although these types of clients typically do understand the value of design, they have no intention of paying for it. They want you to design on spec so they can see a professional solution to the problem, then they’ll hand it to someone with the skill to execute it for little or no cash outlay. Most times, this skilled but untalented person has already been selected, and is merely waiting to be told what to do. Sometimes Dishonest clients are obviously dishonest or slimy, sometimes not. The ones who make a career out of dishonesty are not easily pegged, which is why refusing to design on spec should be your policy in all cases, even with seemingly honest and educated clients. Also falling under this heading is the riskiest sort of prospective client, those who start out with the intention of paying for work, but then choose–or feel pressured into–an alternate course of action when they discover what honesty will cost them.

Tactics for dealing with the Dishonest client who asks for spec designs:

• Run like hell. Be polite, thank them for their interest in you, insincerely wish them the best of luck, but extricate yourself from the situation. If you know of a dishonest designer in your market, you may want to refer the client to him.
• Do your best to convince them that they don’t need spec design, to use your portfolio instead. This will fail.
• Find something in your portfolio that looks similar to their brand–possibly for a competitor. This need not be what you really want to design for them; it just has to stand in for the real work in case you’re awarded the contract. There’s a risk with this tactic, however. If the client awards you the contract because they like that specific design, and it’s already in use by a competitor, you’re in hot water. You’ll have to convince the client that the spec design is not what they really want, that a new proof is the way to go.
• Failing the above (I honestly recommend you return to the “run like hell” tactic), make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it–including and especially your designs–will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights. The Dishonest client will only sign it if he has a reasonable expectation that you will either not see the final (ripped off) design, or if he thinks you’re impotent and won’t be able to touch him even if you do see it.

The Good Clients. These are the clients we all want. They’re honest, sincere, and intelligent. They understand that design is both a craft that can be learned and a talent that cannot. While Good clients will often do much of their own design work in-house, they know when they need outside help. They’re also accustomed to dealing with freelancers, valuing the skill set and perspective a freelancer brings to a project. Such clients are either already familiar with typical freelance rates, or at least accept that they will need to pay more than the CEO’s 16-year-old nephew would ask. The Good clients will not steal from you; if they don’t hire you, they will have hired someone else with comparable skills and rates.

Although it may seem otherwise in your experience, Good clients outnumber the Ignorant and Dishonest by a substantial margin. Hang in there, you’ll find them.

Tactics for dealing with the Good client who asks for spec designs:

• Do your best to convince them that they don’t need spec design, to use your portfolio instead. Explain that designing on spec is against your policy as it is too risky and time-consuming, requiring that you do the majority of the work for which you would be hired, prior to being hired. This will often work. Note that when it doesn’t, the Dishonest client will use the same reasoning as the Good client.
• Make up a fictitious brand similar to the client’s, in the same business as the client, and spec design a project for that made-up brand. It has the same effect as pulling a pre-existing piece from your portfolio, but while preserving your ability to hand over that design if requested. Of course, this tactic carries the same inherent risk of being ripped off as designing something specifically for this prospective client–albeit to a slightly lesser extent.
• Failing all of the above, make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it–including and especially your designs–will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights. The Good client will often have no problem whatsoever with such an agreement.

Don’t design on spec is the golden rule of freelancing. Every freelancer who ignores it will wind up on the Graphic Designers’ Resource Group or another mailing list commiserating with others who ignored the rule. Show the prospective client why you are the best choice for the project, without actually handing them what you want to be paid to hand them.

Are there times when you should design on spec? No, but there are times when the risk is within acceptable limits (which is subjective, of course). For example, if a current client with whom you’ve worked without incident numerous times asks for a spec design, the risk is lower. You already know the client and have a good relationship. If the request is an exception to your standard practices, the client could be short on funds, looking at you to solve the problem while keeping a 16-year-old in the wings. Refusing, however, could jeopardize a long-standing relationship. Follow your instincts. They tell you when you need to use coffee creamer in your mac n’ cheese because the milk has just got to be too old, and they’ll generally steer you through unclear client dealings. Of course, without a contract that specifies exactly what you must be paid for everything you create, every relationship is effectively designing on spec.

Phase II: The Intern Gets the Job

MISTAKE: You probably should have contacted the client sooner in the above scenario, but let’s assume it was a “don’t call us, we’ll call you” situation. The mistake there is in not asking for return, or proof of destruction, of your spec designs. Again, spec design is always a risk, even with Good clients. But when the client tells you they’ve awarded the job to an intern, staffer, or somebody’s nephew, your head should fill with the klanging of alarms. Good clients–remember? The honest, sincere, intelligent ones?–will never opt for free labor as a substitute for skilled, talented work. You’ll only hear that from the Ignorant client or the Dishonest client, neither of whom you want to leave holding your valuable design solutions. Even phrases like “a vendor with a more reasonable rate” is a red flag if you know your rates are reasonable.

PREVENTION: There isn’t a great deal you can do to prevent the award of a job to someone else. If the contract goes to another professional designer, then her proposal, spec design, or rates were just a little more in line with what the client wanted. You have even less control over the job being awarded to someone who will do it for peanuts or nothing–especially if that person is already in-house.

Don’t make the common mistake of lowering your rates. Shop your competition, of course, and price yourself accordingly (this is another topic for a different article). But don’t try to compete with the interns and 16-year-old nephews. There’s nothing you can do, and even if you did charge a ridiculously low $10 an hour, there would always be those who will do it completely free. Consider feedback from Good clients relevant to your rates, but ignore anything the Ignorant and Dishonest clients say about that (or most) aspects of your business.

Lowering already fair rates will not get you more jobs and set you up with top-shelf mac n’ cheese. All it will do is scare away the Good clients who know what a professional should charge. Many a freelancer whose entire client list is ignorant or dishonest wonders why his $25 an hour isn’t landing him a Good or big client.

By now I’ve dropped enough hints that you should be asking yourself if your rates are too low.

CURE: Again, you can’t cure the loss of a contract to someone else–not unless you’re either a stellar salesperson or the other person is a terrible designer.

Next: Phase III: Your Work Has Been Ripped Off