At Symphonic, we have learned to never start work without a written contract in order to protect our work and time. Most artists and designers have a legal problem at least once in their professional career, whether that’s with employment, contracts, copyright, or intellectual property. Working with artists and designers across the states and nation can be in any shapes and forms, and it has been particularly difficult with smudged boundaries in this digital day and age. Clients have their ideas of engaging designers, and designers have their way of working with their clients that often lead to miscommunication and sometimes some bitterness if you don’t have a clear agreement. No one likes to read terms and conditions, but knowing that you have a clear agreement between two parties will protect not only your work, but it also won’t give you an unfair advantage to one or the other. Whether you are a freelancer, boutique studio, running an agency, or if you are looking to contract someone to do your creative work, you must look after the legal issues before any engagement.
We’ve worked with Michael from Creative Legal, who has been giving legal advice since our day one. We asked him a few questions in terms of working agreements between clients and creative service providers.
Q. What are the most common legal problems you face the most when working with graphic designers and artists? How did you resolve them?
A. Terms of engagement with clients seem to cause the most problems for designers and artists, as does the use of their work by others without permission. I do a lot of work helping designers/artists to set up terms of engagement or terms of service to attach to quotes and proposals. That covers all the main areas where problems can arise, such as payment, proofs and delivery, copyright and limits on the use of the work, and liability for services. In most cases, clear terms of engagement that are attached to every quote or proposal and signed by a client helps avoid most problems or makes resolving them easier. Without terms of engagement, misuse of work, such as copyright infringement, can be difficult and expensive to pursue.
Q. What legal matters should you look into before you trade as a professional designer?
A. The first question should be what kind of legal entity do you want to use (sole trader, partnership with one or more others, or a Pty Ltd company to give you protection from direct liability)? Whichever is used then needs an ABN and a tax file number. If there are others involved in the business, you may also need an agreement that sets out how you work together: investor, partnership agreement, or shareholders agreement for a Pty Ltd.
Second, the name should be secured, either just as a “business (or trading) name” (i.e., the name the business uses despite what you as a sole trader, the partnership, or Pty Ltd are called), which is registered with ASIC, or a trademark to more fully protect the name and give you the sole right to use it (or stop others from using it), which is registered with IP Australia.
Lastly, there are terms of engagement, as I mentioned above, and a format or template to use for quotes and proposals that ensures clients agree to the terms each time.
Q. What legal matters should you look into before engaging with a designer?
A. Clients of designers should ask to see the terms of engagement early on to allow time to discuss any terms they are unsure of or unhappy with. Make any amendments or special conditions for a particular work required, such as payment dates or milestones, rights to use work, and so on. It is also worth ensuring that the designer or artist has created their work fresh or originally and were not drawing from the work of others. Clients may also want to look at what insurance the designer has, which is not essential for a designer/artist to have, but it protects them from claims.
Q. Please give us any practical tips on protecting designers and their works (or protecting clients).
A. Copyright is the main protection that designers or artists will have in their work. It is vital to remember that copyright does not protect ideas, but only applies to work that is in a material form of some kind (i.e., written down, drawn or painted, etc.). So when communicating ideas to clients, they won’t be protected until they are in material form, and so it is always worth doing this. If copyright doesn’t apply, a designer can try to use a confidentiality agreement to ensure that the client does not misused ideas that are protected by copyright.
In many cases, doing a pitch to the client should involve a confidentiality requirement, or an initial terms of engagement, for the pitch that makes it clear what the client can or cannot do with the work pitched, even if the designer is not actually engaged on the job.
In more practical terms, it is always worth making sure communications with the client are clear and upfront on the use of works, as this avoids misunderstandings or assumptions by clients. Also, take practical steps to stop work being misused or terms breached, such as only providing final files upon full payment, having a clear system for written client sign-off on proofs, and other instructions (like going to print or retaining all pitch materials or providing them on a secure web platform for viewing, rather than in sending actual files or designs). Practical steps avoid many problems!
Q. And here is the ongoing riddle. Who owns the logo?
I do think this is a big problem the industry faces. Legally, it is right that the designer owns the overall brand work and design unless their terms transfer it over to the client. I have to say it is case by case for designers to decide to hold onto their work or not, but I think they need to be upfront with clients so that it isn’t something that the client industry starts to feel is a serious problem that they will go to lengths to overcome (like the monetary release or no work). It can probably be best resolved by a middle ground with designers. Starting off by owning their work but having reasonable prices to transfer ownership with some restrictions or conditions on the transfer if the client insists on it. For instance, striking a workable deal and not just insisting on copyright ownership and either losing the work or having to concede and sign a monetary release – Something that works for the industry.
Copyright Australia www.copyright.org.au
Creative Commons www.creativecommons.org.au
IP Australia www.ipaustralia.gov.au
Consumer Affairs Victoria www.consumer.vic.gov.au
Creative Legal lawyers www.creativelegal.com.au