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Jean Perwin is a Miami-based lawyer specializing in Intellectual Property Law, Entertainment and General Corporate Law for a wide range of clients, including graphic design firms, advertising agencies, visual artists and photographers. Her firm handles copyright and trademark registration and licensing, entertainment, computer, internet and general business contracts, partnerships, and corporate matters. She is co-author of The Artist’s Friendly Legal Guide and has written for HOW magazine. We’ve chatted with Jean about spec work, design competitions, and the line between ethics and law with respect to creative work.
Notes on Design: Performing work on a speculative basis, under which no price has been agreed upon, is certainly opportunistic and demeans the value of communication design work. What are the ethical issues? Legally, are there any?
Jean Perwin: Working on spec has some legal issues that designers should be aware of. One is the copyright issue. When you submit work on spec, the designer retains all the copyright rights to it. The problem is that if someone doesn’t return the work or uses it without compensating the designer, the cost to enforce the copyright is so great, compared to whatever the damages there might be at that point, that it would be very difficult to enforce those rights. Another is the contract issue. If you submit work on spec, there is an implied contract created. Unfortunately, it’s usually an oral agreement and although they are enforceable, they are very tough to enforce.
Notes on Design: Can you each share your perspective on communication design competitions and when they are ethically or legally acceptable or not?
Jean Perwin: There aren’t usually any legal problems associated with contests. But, what I have seen as a result of contests is an increase in the work submitted, or more likely, the work that wins, being infringed. Because the winners get alot of publicity and because the work is usually good, it frequently gets used without permission or payment. So, they are a risk.
Notes on Design: Do you have any general thoughts on when ethics and law can be clearly at odds with one another in the creative arts?
Jean Perwin: Whenever I’m asked how do you know how much of something you find online you can copy without infringing the copyright ( or paying for it), the person asking the question always wants a number–this many pixels, that percentage of the work. The legal answer is that the stand in copyright law is substantial similarity. But, the ethical answer is really the Golden Rule: copy as much of someone else’s work in exactly the same way you would want someone else to copy yours.
Notes on Design: Any general comments on “The Code of Fair Practice for the Graphic Communications Industry.” The intent of The code of Fair Practice is “to uphold existing laws and traditions and to help define an ethical standard for business practices and professional conduct in the graphic communications industry.” This seems an effort to marry law and ethics. Does it do a good job or do so many ambiguities exist that it’s really an ethical interpretation of existing laws?
Jean Perwin: I always recommend the Guild Handbook and the Code to all my design clients for excellent guidelines for how to price work and how to use written agreements in their businesses. I think the Code does a good job if only because there really isn’t any other consistent source of this type of information.
I’m not a huge fan of spec work, but I do believe it has its place in the world of design. It isn’t just beginning designers who do work on spec, large companies do this also. As an example, a very large design agency I work with, created a paid project for a well-known corporation. They outbid many other large agencies and won the project. Another huge agency that wanted the client, decided to offer a spec design for another project the corporation was going to put to bid. When the agency that won the first project heard about this spec design, they decided to do a spec design as well (did they have a choice if they wanted to keep the client?), and they ended up getting the project again. We’re talking million dollar projects here for interactive work.
I also believe that students can make great use of Spec projects such as those on spec sites. When I first started designing 20 years ago, I just made up projects and created my own design briefs and designed based on them. Now days, a student could not only begin to build their portfolio through doing these spec jobs (I often tell my students to just go to the site and design to the spec project, and don’t worry about uploading if they don’t want to deal with the ethics of spec), but if they do upload, they could also make some money in the meantime if they win. I have one student who built a large part of her portfolio doing work on a spec site, she won $1,500 in the first three months and was able to buy software for her computer to keep going. Now she has a great portfolio of real client projects that she is using in the “real-world” to get a better paying job and better paying clients.
As for Spec clients stealing work. It happens all the time with beginning designers even when it’s not spec. I have a friend who decided to do an illustration project for a local bakery through a local designer. The artist was asked to do an illustration, so he did three for the designer to choose from. The designer kept all three illustrations and only paid for one, saying that he (the designer) got the rights to them. No contract and lack of knowledge was the problem here, not spec. My friend would have been better off going to a spec site and doing a project, there would probably have been less chance of being ripped off.
And my final point would be that if you are going to make wide-references of contest winner’s work being used without permission or payment, then give a few examples to back up the argument. I’m sure it must happen, but without true examples of work winning being infringed. It would add credibility to the article in my mind.
Thanks.
Daniel