Freelancers, you have learned to never start work without a written contract, but it’s hard to like contracts. They’re impossible to read, long and boring and you just can’t wait to sign that piece of paper to get it done and get to the real work. Well this post is here to help.
Contracts are pretty important in a designer’s career, and despite your apprehensions with legal documents, it’s worth getting into some specific details that can make a huge difference in practice. On a legal standpoint, these are rights that every freelance designer should try not to give away by waiver or assignment.
This won’t always be possible, but remember that every "no" you get from a client can be used as leverage to convince them to pay more for your design work. Here’s what you should look out for.
1. Portfolio Display Rights & Moral Rights
Portfolio rights are simply the permission to display the work in your portfolio after it’s done. Few clients have a problem in granting you this (as long as it is for personal use) but if you’re under a work-for-hire contract, these rights are not automatically granted. In fact, you may need to ask them if you want to add screenshots of your work or reproductions to your own website.
Portfolio display rights usually drag in another set of rights called "moral rights". Moral rights include the right of attribution, the right to have a work published under a pseudonym or anonymously, and the right to integrity of the work. It doesn’t feel great to have your design completely destroyed by someone else after you handed it over, particularly if your name is attached to it.
Sell Your Work, Not Your Rights To It
The legal implications of moral rights are pretty complicated, also because they change greatly from state to state. In most European countries, they are inalienable, i.e. you can’t sell them away in a contract. On the other hand, in the US, a waiver of moral rights is pretty standard for any commissioned work.
As a creative professional, you want to keep these right as much as possible, so always look if there’s a clause that asks you to waive them, and try to have it removed, or at least mitigate its scope, like in this example clause from an Illustration Agreement.
“Artist’s Right to Authorship Credit. Artist may use Work in Artist’s portfolio (including, but not limited to, any website that displays Artist’s works). Commissioner and Artist agree that when asked, Commissioner must properly identify Artist as the creator of Work. Commissioner does not have a proactive duty to display Artist’s name together with Work, but Commissioner may not seek to mislead others that Work was created by anyone other than Artist.”
2. Rights To Unused Sketches
Graphic designers, this is for you in particular! So you created a bunch of logo ideas, or a number of characters and different images to help the client choose. It is likely that even if that client doesn’t like them, they are good ideas that can be used elsewhere in your work.
Ensure that you can "recycle" your sketches and unused designs with a specific provision that allows you to keep full ownership of unused drafts.
Client requests Designer to create [description of the work]. Work includes only the final, deliverable art, and not any preliminary Work or sketches.
Give Permission, Not Your Rights
Developers can do something similar with a "design tools" clause. Do you have any snippets of code or fonts that you incorporate into multiple projects? These are your tools. Just because they are in some client’s project doesn’t mean that the client owns the tools.
Instead, you give the client permission to continue using the tools, like in this example:
"Designer Tools. The Designer may incorporate certain Designer Tools into the Deliverables. "Designer Tools" means all design tools developed or utilized by Designer in performing the Services, including without limitation: pre-existing and newly developed software, Web authoring tools, type fonts, and application tools. In the event Designer Tools are incorporated into any Final Deliverable, then Designer grants Client a royalty-free, perpetual, worldwide, non-exclusive license to use the Designer Tools to the extent necessary to use the Final Deliverables. Designer retains all other rights in the Designer Tools."
The Safety Net
In some instances, you might want to tackle the opposite problem: what if someone sees your sketches in the proposal and just decides to copy the idea without hiring you? If this is something you fear, just add a notice of confidentiality to any proposal you send.
3. The right to walk away
If things start to go the wrong way halfway through the project, there comes the urge to drop the project and cut losses. Whoa… not that fast. Once you have signed a contract, you’re legally bound to finish the project and deliver what is promised. This is particularly bad if you are working on a fixed fee, as any estimation error in pricing the project can ring up time and financial losses.
Last Resort Exit Strategy
While a kill fee usually takes care of things on the client’s side, it’s up to you to prepare an emergency parachute for yourself, the service provider. Try to add in the option to terminate the agreement, with reasonable notice, like in this Consulting Agreement:
"Termination. Either party may terminate the contract at any time through written request. The Company shall upon termination pay Consultant all unpaid amounts due for Services completed prior to notice of termination."
4. The Right To Solve Disputes Near You
This right is usually granted by law to consumers. Consumers are usually the weak party when litigating with a big company, and having to go litigate in another state is very expensive. That’s why for example, consumers from the European Union can always sue in their local district court.
With design agreements, however, you’re on your own; so have a look at the jurisdiction clause before signing a contract. If your client is in the same city as you are, there’s no issue, but if your client is in some other place, they probably want things to follow their jurisdiction and law. This is far from standard.
It is always worth negotiating this part, and a good compromise is suggesting some place neutral, that at least won’t give an unfair advantage to one party or the other. You can also consider options like online mediation and arbitration: always a great idea that will save everybody a bunch of money if things go south.
Editor’s note: This post is written by Veronica Picciafuoco for Hongkiat.com. Veronica is the Director of Content for Docracy.com, the home for free, open source legal documents. She has a legal background and works closely with tech startups and freelance designers in Brooklyn, NY.
Disclaimer: This article wants to be useful and informational, but should not be treated as legal advice. All legal documents cited are only to be used as a starting point. The author, Hongkiat.com, Docracy and the original authors of the documents cited disclaim any liability connected to the use of these material without a licensed attorney.