Coping With Clients Who Use Your Concept Design — Without Paying (Page 3)

Phase III: Your Work Has Been Ripped Off

MISTAKE: Should you find yourself staring, mouth agape, at a screen full of your spec design that the client used without paying you, you should recall this article and try to imagine my voice, just beside your ear, booming: “I told you so!” This is exactly why the “don’t design on spec” golden rule of freelancing exists. More of freelancers’ spec work is ripped off than is actually bought (if you want to argue that point, be prepared with dated e-mails from provable e-mail addresses to counter my stack of the same).

The next mistake was not communicating to the client in Phase I: The Proposal that she couldn’t do anything with your design if you weren’t hired.

PREVENTION: Don’t design on spec, but if you feel you must, don’t leave it in the client’s hands after she’s declined to hire you. If you do leave it in the client’s hands, make sure the client knows she can’t use it.

Include in your proposal a clear statement that all concepts, sketches, proofs, and other materials remain your sole property until and unless paid for.

Better than that is to have the client sign an agreement in advance. If the client insists that you submit speculative designs, agree on the condition that the client sign an agreement covering their use. The agreement should state that you own any and all rights to the material, except client-provided portions, and that, in the event you are not awarded the contract, the client will destroy all copies of the spec artwork and shall not use it as the basis for their own designs.

Once you’ve been told you didn’t get the job, and if you didn’t cover destruction of artwork up front, ask the client to sign an affidavit of document destruction. Such a document certifies that all copies of your work in the client’s possession have been destroyed. Rather than spell out all the language here, you will find an Affidavit of Document Destruction as a downloadable Word document at the end of this article.

Note that, at this stage, the client has already rejected your proposal. You haven’t any leverage to insist they sign the Affidavit of Document Destruction. Don’t be surprised if they refuse. Most Good clients will have no qualms about signing it–odds are, they’ve already filed your work in the circular cabinet. The Ignorant clients who have a tendency to undervalue and dismiss you anyway, will likely not bother to sign it because they see no benefit to them of doing so. And, of course, the Dishonest clients are out to screw you anyway, so they’ll flat out refuse to sign it.

Regardless of whether any client signs it, you will have sent a message that you aren’t a fool, that you know your rights, and that you’re watching. Good clients already expect this of you and will not be put off by a reasonable demonstration of it–on the contrary, they will tend to think more highly of you when it comes to the next project. Ignorant clients, who didn’t know that the intern doing the mechanics of turning your paper design into a functional Website might not be legal or ethical, will be given the opportunity to prevent themselves from unknowingly making an expensive mistake (they might even learn something). The Dishonest ones might be scared away from their original plan to rip you off, and may move on to steal from someone who hasn’t read this article.

Sticking a copyright notice on your artwork is ineffectual in preventing theft. Do put that notice on there, unobtrusively (between 6 and 10pt san-serif type works best, no pretty typefaces), because that will help you effect a cure; it just won’t do squat for prevention. Don’t assume the client understands how copyright law works–odds are, you don’t understand how copyright law works.

Finally, and most importantly, save all correspondence with the client–especially relating to delivery of the spec design(s) and proposal. Copy yourself on all e-mail to the client. Don’t rely on your Sent folder. If the matter ever goes to court, a copy of a message that went out to the Internet, passed through an unaffiliated party’s mail server, then came back to you with proof that you really did send it to the client is far more valuable than a Sent folder message that has no such proof and can be easily faked.

With carbon copies of your messages containing the artwork and proposal, you now have independently verifiable proof that you had the design on the date of the message. If you’re extra cautious, send a copy to a friend, colleague, or your landlord.

CURE: At this stage, the damage is done. You’ve already seen that the client has used your spec design or based their work off of it. Now it’s time to recuperate your loss from that damage, or at least prevent the client from gaining any further value from your uncompensated efforts.

Your best bet is to consult an intellectual property attorney at this point, but if you’re eating macaroni and cheese most nights, you’ll want to put that off for as long as possible.

First, secure your proof. Don’t say a word to the client, no matter how angry you are, until you’ve secured court-admissible proof of the infringement.

If the work is online–say, a Website or downloadable document–make a PDF of the work that is, or resembles, yours, as well as any containing or referencing documents. Let me explain that last. If you designed a brochure, and they placed that or a similar design as a PDF brochure on their Website, get not only the PDF brochure, but also the Web pages that link to or describe that brochure–up to about a dozen pages if there are many. Make PDFs of the documents from directly within your Web browser or from Acrobat’s built-in function to fetch a URL and convert it to PDF. Make sure that the default date/time and URL headers and footers settings are intact. Acrobat, both during internal Web-to-PDF operations and from within the browser, adds the date, time, and original URL of the document into the resulting PDF as headers and footers. Should the client remove the infringing work from her Website, those headers and footers will be proof of the PDF’s authenticity.

Once you have all the relevant documents as a single PDF (combine PDFs if necessary), digitally sign and certify the PDF. This is important because it locks and protects the PDF forever, which is what makes it admissible in court under U.S. federal law.

Call a friend or fellow designer and ask her to do the same thing–this gives you a witness to call if necessary. Better still, get a competitor you dislike but respect to do it.

If you want to go for the overkill, print out a set of documents from the Website (not from the PDF, or you haven’t gained anything with hardcopy). Then, get the day’s newspaper. Hold it against a monitor displaying the infringing work on the client’s Website (make sure the Address or URL field is visible), and take a picture with a disposable film camera. Don’t use your digital camera. That might work for normal folk, but it could be argued that you have the skill to fake a digital photograph. Get your film developed on the same day you shoot the picture; this will establish the date more firmly than the newspaper.

Now, if we’re talking about printed matter, get your hands on several copies of the printed work. Enlist the aid of an accomplice if you would have to obtain the printed matter directly from the client (you don’t want to risk an altercation). Mail two copies of the material to yourself in separate envelopes. Pay the six bucks for registered, return receipt, which requires every postal employee who handles each letter to sign it–there’s an ironclad witness, the U.S. Postal Service. When the envelopes arrive, don’t open them; file them with the rest of your documents about this client. If litigation becomes necessary, you’ll open the envelopes in presence of the mediator or judge.

Got all your documents proving that you sent the client your artwork on a certain date, and that, on another date, they infringed upon it? Good.

Now bill the client.

Send the client a bill equal to your original quoted amount. 30 days net, thank you for your business. On the invoice, describe the line item as “concept development” and include their original project title. Mail or FedEx–don’t e-mail–the invoice to the top ranking contact you have with the client.

If your client is anyone but the intentionally Dishonest, you’ll soon get a phone call.

When the call comes, be polite and friendly. Tell the client you like how she implemented your concept. You can even try inquiring about the production techniques employed before she cuts you off by saying she won’t pay. When she does, explain that, in your correspondence or phone call of such-and-such a date (be ready to use specific dates; don’t be uncertain about anything during this conversation), the client declined to hire you to execute the design. However, as of this other date, you observed your artwork in use on the client’s Website, brochure, or whatever. As you are the sole copyright holder of that design, you are more than happy to transfer rights over the client upon receipt of payment for the invoice–note the invoice number. If the client gives you the opportunity, explain it to her (even condescending Ignorant clients are more willing to listen when faced with unexpected bills).

Freelancers bill for the hours it takes to build something, but we’re really charging for our ideas and problem solving skills. That’s a difficult concept for clients to grasp, so we charge them for our build time, which is representative of the brainpower and skill exercised in the real work. It’s the same for attorneys, accountants, psychologists, and any other skilled professionals in a service industry; skills and knowledge are billed as time expended to actualize a result. In situations where someone with less skill or knowledge works at the direction of, or from the ideas of, a skilled professional–for example, a paralegal doing the research to backup a licensed attorney’s ideas–the rate is the same because the result is the same. When you solve the problem of communicating a message visually to an audience, that solution does not lose value because you assign the task of slicing images in Photoshop or preflighting your InDesign layout to your studio’s intern. Nor does your design solution lose value if the client asks one of her employees or interns to do the same.

By this point, the client will have likely directed you to perform some physically impossible act and hung up. So, say it in an e-mail. Thank her for the call, and explain that it’s unfortunate that she doesn’t feel that your rate is fair. Note that she was aware of the cost for use of that design on the date of the proposal (mention the actual date) and again during your telephone conversation of (the date you were told you didn’t get the contract). Offer the client an out. Tell her that, since she will be paying for the right to use your design concept anyway, you would be happy to go ahead and execute the originally specified mechanicals. (You could point out issues with the intern’s execution for leverage at this stage.)

In some cases, this actually works. The client will hire you to do the job, at which time you need to get her to sign your normal design contract. Don’t hand over anything until you’ve got cash in hand, though.

However, in most instances with Dishonest or obstinately Ignorant clients, this tactic will not work. Despite the bill and the letter, the client will still be operating under the assumption that you won’t pursue the matter further. Make darn sure you prove her wrong, or you’ll be dealing with clients like that your entire career.

If you have to take it further, follow these steps:

1. After 45 days from your original invoice date, send a new invoice without cover letter.
2. At the 60 day mark, add late fees and send a new invoice.
3. When the 90 day milestone begins to loom, talk to a business attorney. If the client is still using your work by that point, go to an intellectual property attorney instead (look under “patent” in the Yellow Page). Most attorneys will let you buy an hour of their time, which will get you a consultation and a letter to the non-paying client. The average person–even Ignorant clients–typically reacts in your favor when they receive a letter from an attorney demanding payment. Ask the attorney to give the client ten business days to remit payment.
4. If payment hasn’t arrived after the twelfth day, go back to the same attorney and ask about your options. If the infringing work is still in circulation, the attorney may elect to write a cease-and-desist letter that includes the very scary (and very realistic) figure of $50,000. That’s the current penalty for copyright infringement in the United States–per instance. That number, when written by the hand of someone who routinely effects its collection, has a tendency to open checkbooks in the direction of your original invoice (if less than $50,000).

What you should not do is give up. Do what you can on your own, then call in the hired legal guns. You also should not run around town (or the Web) discussing the client. Anything you say about the client publicly could be used to weaken your case in court. Keep fighting against the Ignorant and Dishonest clients. It’s important that you do, or you’ll keep working for the same type of clients, keep being taken advantage of, and keep eating your store-brand mac n’ cheese for the rest of your career. And that, is a fate worse than a day job.

The scenario above is, regrettably, common. Just about every freelancer who designs on spec finds herself mired in it at some point. Arm yourself with pre-emptive strategies to reduce the risks, and know your options for dealing with the results. Of course, the best strategy is to not design on spec.

For a designer-friendly primer on copyright law, including what every graphic designer, illustrator, photographer, and Web designer absolutely must know to protect herself, read chapter 5 of my book, Adobe Illustrator CS2 @Work–it’s about a lot more than just Illustrator.

Download my Affidavit of Document Destruction as a Microsoft Word document: Download (.DOC, 30k). You are free to customize and use it in your own freelance or studio design work, but please do not redistribute it, for free or for pay. If you want to share it with your friends, send them here to get it; then they’ll learn why they should use it, and when. (By the way, I do not design on spec. I wrote the Affidavit of Document Destruction for this article, and employ something similar under totally unrelated circumstances.)