Patricia McKiernan: Creative Professionals and Ethics

We recently chatted with attorney Jean Perwin about spec work, design competitions, and the line between ethics and law with respect to creative work. As a follow-up, we’ve asked many of the same questions of Patricia McKiernan, Executive Director of the Graphic Artists Guild, a membership organization that promotes and protects the social, economic and professional interests of creative professionals. Below are Patricia’s thoughts.

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?

Patricia McKiernan: As an organization, the Guild does not support spec work and looks at as an ethical question. The risk involved to the artist is the greatest – there is a risk of not being paid for the work, it takes time away from other possible worthwhile paying projects and may incur expenses that are not reimbursable to the artist. The other thing to keep in mind is that graphic art services require a partnership with the client and the artist to deliver the product. Spec work does not foster that environment. There is invariably too little information available to do the work successfully. Having said all of the above, the only one who can decide if spec work is right for them is the artist.

Notes on Design: Can you share your perspective on communication design competitions and when they are ethically or legally acceptable or not?

Patricia McKiernan: Hate to sound like a broken record, but we’re still talking about a form of spec work when it comes to many contests that are out there, especially those run by commercial enterprises. The sponsor of the contest is usually the one benefitting, more so than the one who wins the contest. I think the most unethical contests or competitions are those in which the contest host takes the copyright to all submitted work, regardless of whether any of those works are chosen as winners and/or receive some sort of “prize” as compensation. Many artists don’t read the  Terms & Conditions that are usually printed/posted on a separate page from the general contest rules and specifications, and are unaware of this rights grab when they submit their work, although the contest host knows this.

The Guild did a lot of research into contests and competitions in the late 1990s, and unfortunately not much has change in the intervening years in many areas, especially where contests are concerned. Competitions are a little different than contests since they very often focus on excellence within the field. The Guild developed a set of guidelines based on its research to help artists determine if a contest or competition is right for them and also for sponsors to check before developing a contest or competition. The guidelines are on in our book, Graphic Artists Guild Handbook: Pricing & Ethical Guidelines as well as on our web site.

Notes on Design: 
Crowdsourcing, where payment is based upon subjective results rather than actual work invested, puts amateurs on the same playing field as
professionals.  Not necessarily a bad thing, but ethical issues associated with low or no compensation seems to be an obvious criticism.  Thoughts on crowdsourcing?  Again, any examples from the communication arts field that are either positive or negative?

Patricia McKiernan: Crowd-sourcing may be legal as a business model, but it is another form spec work taken to an extreme and far from ethical from the Guild’s perspective. We’re talking about devaluing the work of an entire profession. Crowd-sourcing sites encourage below market rates and treat graphic artists as an expendable commodity instead of highly trained professionals providing a genuine service. If a client wants to own the copyright of the artwork created by a professional graphic artist, the value of that copyright is reflected in the fees charged. The below market rates encouraged by crowd-sourcing  sites ignores the value of copyright and creates a perception within the business community that copyright doesn’t exist or has little value. The recent crowd-sourcing project by the DOI is a prime example of how pervasive the trend is becoming and that’s sad. Education is key, for both artists participating on such sites and the buyers posting projects, but it’s hard to educate someone, i.e., the buyers, who’s only concern is “how cheap can I get this for?” If the roles were reversed, I wonder how the buyer would feel about people trying to pay for his product as cheaply as possible leaving very little room to cover overhead and day-to-day living expenses – and forget about seeing any profit.

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?

Patricia McKiernan: I always ask, if this was your work, would you want someone copying it, whether wholly or in part, and claiming it as their own or using it without asking you first? Invariably, their answer is “no.”

Notes on Design: How about photomanipulation? 
When is it a legal issue, when is it an ethical issue, or when does it not matter at all?

Patricia McKiernan: Manipulation to change the reality of a photo that is meant to be used in a public format or for reporting a news issue, is always an ethical issue – it manipulates how people view the photo and can sway perception in a direction that’s counter to what really happened, or the original meaning of the photo, or what a person actually looks like in real life (rampant airbrushing in advertising). If it’s manipulating somebody else’s work, then you have legal and ethical issues. If you’re working with your own photo to change it, but it’s to be used in a public format or news related story, there are just as many implications as someone else manipulating it without your consent.

Please note that I am not talking about manipulating your own photos for presentation as artwork when I use the phrase, “public format.” Art is subjective and while I may find a manipulated photo on public display as artwork, funny, sad, inspiring, in poor taste, etc., someone else may see it as the opposite.

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?

Patricia McKiernan: Every profession has some type of code of ethics and the graphic arts needs one just as much as lawyers, architects, accountants, and any other profession you can name. The world changes constantly and the law changes periodically, but ethics stand the test of time. Understanding the ethical perspective keeps you grounded in treating your relationships, personal and business, with care.