A sense of professional decency

This morning, Danielle sent me an email in response to yesterday’s entry, saying she’d started it as a comment but that it got too long and that maybe it should be a post but that she didn’t know if she’d ever publish it. So, I asked her if I could. Her commentary is important because she straddles two worlds; working in the apparel industry but much of her work is technically graphic arts. The line she must draw is difficult but she sums it up nicely by saying her conduct is governed by a sense of professional decency. If you ever hire an artist for apparel industry related work, Danielle’s comments are a must read.
This post does a service for patternmakers that I’m trying to do right now for my own profession- that is define ethical business practices as a freelance fashion illustrator, in the absence of any sort of standard regulation or available education about such things.

This post doesn’t really help me resolve the questions I have about my situation though. I find myself struggling with a lot of nuance I don’t really understand well, because I am in some senses a contractor, but on the other hand I am dealing in graphic images where copyright is a big deal.

To my mind, technical illustration is very similar to patternmaking. I’ve found no better way to charge for this kind of work other than by hourly rate, and regardless of what the copyright law might be for images, I would never ever use drawings I developed for a client for any other client or purpose without express permission. This just makes sense to me though I never articulated it and I realize now it is a sense of professional decency.

Figure illustration to my mind is a bit stickier. The style I’ve developed is my own and frankly I’d like to exert a reasonable level of control over how my illustrations are used (moral rights, different media, control over sublicensing). Thus I’m more inclined to sell the figure illustration “by the sketch” and specify the copyright terms in writing (in my simple, non lawyerly way) so both the client and I are aware of what is to be expected. This is all negotiable in the same way that the use of a patternmaker’s trade secrets may be – exclusivity is expensive, limited rights can be very reasonable. To my mind, it is obvious that by commissioning the project that a client has the right to use the illustration for production and promotional purposes for their line. It even seems to me that it would be proper for me not to license the image for print or other media for as long as the client is in business. In fact, even if it isn’t specified I consider those terms an unspoken “gentleman’s agreement” as you say, upon which I build my reputation.

When I get inquiries about freelance design, which I am open to doing, I find I get in over my head when the client asks me about ownership of the “design”.

Frankly, I don’t care about whether I own the design that I “designed” or not. I have no desire or plans to manufacture apparel ever and as far as I’m concerned the technical drawings and ideas I develop are “work for hire” and belong to the client. Being that most of the time they are mashups of traditional design elements, just arranged and styled with a specific client in mind, they are neither particularly original ideas nor is the ownership of the design valuable to me and my business.

However, in the absence of written specification otherwise, the illustrated images technically belong to me under Canadian copyright law, whether I was paid hourly or by the sketch. With figure drawings, I want to own the sketch itself. I want to make sure no one can sublicense the image without my permission, use the image in contexts other than production or promotion of my client’s line, take credit for the illustration itself, or get another artist to alter the image. However, I have not figured out a satisfactory way to explain to a client the difference between ownership of the design and the ownership of the sketch. It seems to be more difficult to understand when the designer and the illustrator are the same person.

See, unlike this contractor, I’m not claiming that I own the design (which I suppose is the intellectual property of the client now). Say, if I drew a sketch (or even took a photo for that matter) of a house it’s not like I own the house, right? The sketch belongs to me.

Bringing it up at all seems pretty paper-happy (though usually it is only the paper happy clients who do bring it up), and honestly I don’t think I have a great understanding of what I’m talking about yet. For the most part I work with Gentleman’s agreements and act as ethically as I know how (barring ignorance) so that I’ll hopefully never have to deal a dispute, while knowing that (at least in Canada) the sketched images themselves are technically my property in case I ever find they are used inappropriately.

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  1. bethany says:

    I have a few different graphic designers for my line and I have them sign a one page ‘contract’ which is mostly just information like name and address. When it comes to the copyright issues I address them in the contract as such:

    Usage: Exclusive, unlimited use, for life of the products only.

    Special Terms: Third party licensing not allowed without mutual
    agreement between 3rd party (Georgie World) and artist.

    Area of License: Worldwide

    Ownership of Original Art: Artist

    Ownership of Copyright: Artist

    As I understand it, this means I can use the image for the products I specify on the contract, which is usually a tshirt design and publicity for GW. I can use the image for as long as it sells and I can sell the garments worldwide. However, if someone comes to either myself or the artist and wants to reproduce the image, both GW AND the artist have to agree and we both have to be compensated. As for the ownership and copyright of the artist, I figure at this point I would rather pay less and have them retain the rights. When I get bigger, I can renegotiate the terms.

    With that said, in my heart I believe that even though an artist drew the images, I feel I should own both the original art and the copyright because it was my ideas that created the image, the colors I wanted, and I paid for the design.

  2. Oxanna says:

    Correct me if I’m wrong, but I would think that there are three categories here, with bethany bringing up the third one: Technical sketches, fashion illustration/figure sketches, and graphic designs. With graphic designs, especially those on a garment, I think bethany’s method sounds proper. I think I agree with Danielle on technical sketches. The figure illustrations…I suppose you could just write it into the standard contract and clarify the difference between the design and the sketch there? Then if they don’t like it, they can negotiate. Because I don’t think I’d want my sketch licensed, altered, or uncredited. If they really wanted those exclusivity rights, they could cough up more $’s, because they could get more out of it. Does that sound appropriate?

  3. Kathleen says:

    I also agree with Bethany.

    I have hired Danielle to do artwork for me. Our contract was minimal, she wrote it. Basically, I didn’t want usage limitations, didn’t want to pay a royalty but she could call it hers for all I care :) as long as I can use it as I see fit. That said, we could make that agreement because she knows me pretty well. She knows my taste and trusts me to do the right thing if I ever wanted to do something else with it. Besides, I’d be hiring her to do it anyway. Also, we trust each other (that whole professional decency thing). If she wants to use something she’s done for me for promotional purposes, she’d ask me if she felt she needed to and I’d trust her to know the difference.

  4. Rocio says:

    We offer product development services (creative and technical) to the fashion industry in US and Europe.
    For 10 years we have offered written Terms and Conditions listed in the back of every PROJECT ESTIMATE
    I feel that a lot of clients find the prospect of reading a paper titled CONTRACT intimidating, so the logic in bringing this out in the open BEFORE WE CONDUCT ANY WORK makes sense for both parties and we are able to clear out any doubts before they sign on the dotted line approving the quotation and with the acknowledgement that they have read and understood how each one of our products may be used by the client once the project has been completed and PAID FOR.

    When it comes to images, we have different conditions for creative images (3D silouette, line sheet) technical images (used for specifications) or original artwork to be used in the production of garments (such as a t-shirts, repeat prints or embroidery)

    For Technical services (patterns, grading, markers, samples) the terms and conditions are mainly there to re-assure the client that we will not use any technical products for other clients as they are all created tailored to each individual client.

    I’m afraid that the days of verbal agreements are long gone, and fighting someone over a verbal misunderstanding usually works out to be more expensive than just having a lawyer draft a contract to protect yourself.

  5. Esther says:

    I have seen a trend among textile print designers. The “high” end cotton print designers are limiting usage of their prints – meaning they don’t want them as part of a manufactured product. They are within their right to do so. But at what cost? Any designer must evaluate if their exclusivity will result in increased brand value or perhaps loss of business. IMO the limitation of fabric/print usage is killing innovation in clothing design. There must be a happy medium somewhere.

  6. Oxanna says:

    Esther – interesting that you mention that, because I recently saw an online store where the print designer (high end) asked that the prints not be used in any clothing to be sold, only personal use. I thought that was interesting, although potentially unenforceable. What do you all think of this sort of exclusivity?

    In this case however, I believe she was also making her own products from the prints, so I can see where she was coming from.

  7. Concerned_Tailor says:

    I am convinced that paperwork becomes archaeological evidence of issues a business has experienced over its lifetime. As they say: “once bitten, twice shy”. Here’s a scenario that happened which forced me to adopt paperwork. Not because I love it. But, because I have been forced to validate that I had certain conversations clients and that I need to check their understanding of the terms under which I work.

    I collect a 1-page contract from clients:

    For custom clothing, I design and make garments. As such, I do not charge for patternmaking and sourcing – that’s what I bring to the project, the reason people come to me over another stitcher. The contract indicates that “all tools, patterns, designs and other intellectual property acquired in the making of the garment are the express property of {My_Company}”. In other words: I learn, explore and push my skills on my dime. But, in the end, the Customer receives the fruits of that labour in exchange for compensating the direct labour spent making their garment.

    For patterns and samples, I provide a service. The contract indicates that “all patterns, tools, sourcing, samples and technical specification documents created for the express intent of manufacturing a garment are the express property of the Sponsor. {My_Company} will not copy, distribute or release this information to any third party, including {My_Company}, without the Sponsor’s express permission”. Like Rocio mentions, this is simply a reassurance for the Client that I mean what I say. The proof is in the working relationship.

    {Note: I am not offering pattern services, currently. This article and others you have written have caused me to pause.}

    Now, the “archaeological event” for why I need to review this piece of paper:

    A custom clothing client came to me demanding a knock-off (KO) of a {Designer_Brand} 2-piece woman’s skirt suit. I advised the client that I don’t do KOs but would evaluate the source garment for technical merit and incorporate some of the design features she liked into a custom design for her. Hopping and shouting, she insisted that it had to be a KO; but, to her measurements. Hungry, I said ‘yes’ to the job.

    Fast forward three weeks. The baste fitting is done, the pattern has been transferred to oaktag and the customer has returned for a final fitting. As I walked into the other room, she starts to collect the pattern pieces off my bench (Note: I lay out the pattern while I’m fitting a client to make notes and final adjustments). I return just in time to see her walking out the door with the pattern pieces and the suit still on! I confront her and ask where she is going.

    She proclaims: “These [the pattern and the suit] are mine!”
    Me: “Umm… a) not until you pay me, and b) a copy of that pattern will cost you $250”.

    Embarrassing story, short: I managed to get some of the pattern pieces off her and ripped them up. I sent her out the door with a nearly-finished suit and a handful of pattern pieces. (She still owes me about $1200 on that suit, btw…)

    Several weeks later, I get a phone call from a cut & sew shop in {Small_Town, FL} telling me they received my sample but not the technical package. Would I please forward a copy of the specs including the pattern {because pieces were missing}? I explained that the client tricked me, still owed me money, and I asked them to not put the design into production because it was a known and easily-recognizable KO.

    I don’t know if that garment ever went into production. I can only hope it didn’t. If it did, the cut & sew shop would have needed to rip it down to obtain the pattern and the specs. I do feel I am adequately distanced from that snafu. In any event, this is when I instituted paperwork and changed some internal policies.

    I do get the occasional push-back from custom clients who ask if I want the right to put “their designs” into production. I had no idea that asking: “do you like flap pockets?” while I’m sketching makes them the designer. I do have a personal rule of not replicating a Customer’s specific garment without their permission. But, I am hesitant to put this in writing because it undermines my integrity.

    I know the paper, itself, does not protect me. And, the best choice I can make is decline a job that conflicts with the way I do business. Personally, I am appalled that I have to enumerate the details of professional conduct; but, I’ve become so accustomed to it over the years.

  8. Esther says:

    I think there has been a change in the way that print designers view themselves. Instead of being an employee of a textile company, they are instead artists and their works are then copyrighted. (I am excluding prints which contain licensed characters). Not to argue semantics and copyright law, it does cause problems for fashion designers. Right now fabrics are generally not sold with “terms of use” or licensing info. So if a printed fabric is mistakenly used in a piece of clothing in which the artist wants to manage the use of his work, what is the artist to do? Where does that leave the fashion designer? Does the artist then have the right to send invoices to the fashion designer for licensing fees (similar to Getty/Corbis) or to sue the fashion designer for infringement? And really, this idea can flow back down the supply chain if we really want to pursue the idea to the extreme. US Copyright law really allows for this kind of extreme action, which will only be amplified if the US Fashion Copyright extension is added.

    Sorry to hijack this thread. I only bring this up because prints are extremely important in childrenswear design. It is pretty cut throat to get the “hot” print of the season because of limited supply. Fabric suppliers run out of sample yardage every season and their best clients always get their cuts first. That leaves the small DE’s out cold. Because of the limited selection of available prints/suppliers, you see the same print everywhere. I could literally scream if I see certain dots prints because so many boutique designers pick the same thing. If managed prints were not so tightly controlled by the artist, we could see some truly beautiful things come of it.

    Getting back to the point of this blog entry, I think we could see the day when fashion designers will have to hire artists to create exclusive prints. The prints would then be controlled by the contract between the artist and designer. Costs will escalate and we may all be dressed in unbleached muslin.

  9. Esther says:

    I hope no one misunderstands me – print/textile designers are artists in every sense, regardless of whether they are employees or independent contractors. They can choose to manage their work as they see fit. But, the effects of managing a print as art can be far reaching and it will have a negative impact on the fashion industry, IMO.

  10. Danielle says:

    bethany – graphic art for printing is a different situation than what I am talking about, but I must say your contract is a lot more decent for artists than many I’ve seen.

    Oxanna – thanks for breaking it down into categories for clarity. Of course I would prefer to own my illustrations but it is open to negotiation and I do have my price!

    Kathleen – you’re an excellent client to work with because, as you say, we can keep a lot of this stuff unspoken and trust each other to act conscientiously. Royalties are a whole other wrinkle I haven’t looked into yet. They seem to be most common for book illustration, but that is all I know.

    Rocio – I agree that it is critical to get a project description in writing before any work goes down, for all the reasons you cite. As we usually communicate via email anyway, this gets written down. I find when you write things down you have to process the ideas carefully and really think about what you need so taking some time with the client to refine the description is very useful. Like you I try to avoid the term contract too. I just call it a project agreement.

    Esther – It seems to me that a lot of textile designers probably develop from frustrated apparel designers like yourself. The other option, as you suggested, is to work closely (maybe even exclusively) with a textile artist. It can be a very beneficial relationship for both parties. There’s a lot of precedent in history for that, notably Ossie Clark and Celia Birtwell. Why not contact your favourite textile designer directly and make a proposal?

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