If you provide design or other services for hire, the recent case of JCPenney’s being sued by a design firm is a lesson to learn from. The central conflict was this: JCP hired a visual merchandising firm (Hudson + Broad) to design a fixture for its stores (shown at right). It is claimed that JCP promised to order X quantity of the fixtures to be supplied by H+B but JCP went around the firm to source the fixture from lower cost suppliers. Sound familiar? I thought so.
This is my take on it from the context of the little guy -you and me- with two tips to avoid a similar or related problem:
Don’t do spec work. Many people are tempted to do work on spec thinking they’ll get a nice contract to fill the order but it often doesn’t happen. In this case, H+B is bigger than you but they’re still a relatively small company. If they will have a hard time recouping compensation, it will be even worse for you. The costs of attorneys, lawsuits, and expert testimony -to say nothing of the emotional energy drain pulling you away from day to day operations- is more than most can bear. If you’re small, it’s just not worth it. If you’re good, you don’t have to work for free to prove yourself. If the firm hiring you is reputable, they shouldn’t expect you to work for free either.
Charge design fees. Charge for design services separate and apart from an anticipated order. In fact, the client shouldn’t get any technical specifications that could be used to manufacture the item until they pay. [The case of JCP vs H+B is a bit different in that the fixture serves as a logo or icon of sorts so other issues common to graphic design (but not apparel) are brought to bear.] Your design fee needs to cover your costs of providing services whatever those may be, separate and apart from an anticipated order to produce the item or even an anticipated royalty (don’t hold your breath). I realize this doesn’t seem quite fair but this is the reality of offering services for hire.
It used to be common that designers, contractors and even some pattern makers provided free services in anticipation of an order but this is increasingly less common. Initially offshore Asian providers led the trend needing to differentiate themselves to offer greater value than a competitor; design fees were rolled into the per unit production cost becoming largely invisible. However, with costs in Asia increasing so dramatically, upfront “free” design services are being pared back.
In my own experience I can say it has been several years since someone has had the expectation I would work for free. That’s the lay of the land today, at least in our industry and don’t let anyone tell you otherwise. Again, a reputable firm, one you would want to do business with, should not expect you to work for free. If they do, maybe they aren’t as on the level as you had supposed so don’t be swayed by a big name. As any service provider will attest, you’d be shocked at who is bouncing checks or refusing to pay altogether.