Trade secrets and sewing contractors

Alternative title: More problems with inexperienced pattern or sewing contractors

Subtitle: Hanlon’s Razor; Never attribute to malice, that which can be explained by ignorance. Or, [any] sufficiently advanced cluelessness is indistinguishable from malice.

Let me be very clear. While I’m technically a contractor, my first loyalty is to designers. In my book and here, I’ve explained why one should be careful in dealing with the smallest of sewing contractors. Very often these are businesses operated by enterprising individuals who’ve capitalized on a growing opportunity. Unfortunately, many of them have limited educational opportunities and have never worked in a production environment themselves. Albeit well meaning, they establish standards of practice that run counter to traditional industry practices. One such situation that came to my attention yesterday, is a sewing contractor who contractually stipulates that among other things, she owns a client’s intellectual property. As you may imagine, I was livid. Said practitioner thinks her policies are fine because no one has complained (before). It is not uncommon for complaints to be unknown for several reasons:

  1. A practitioner’s clients usually don’t know that much themselves. They assume a contractor, by virtue of their position and function, is in a better position to know accepted practices and as such, are unlikely to question them. That’s why they go to one. Again as I said in the book, using this kind of contractor will be the least of your problems. If their practices are inexperienced and warped, you can’t expect them to educate you correctly, or for your products to be sewn cost effectively and as well as they should be.
  2. Clients are desperate for contractors. One is likely to acquiesce to disfavorable conditions because they don’t have any alternatives. Take it or leave it. Most take it.

If you are a contractor rendering work for hire, you cannot simultaneously be paid for work and retain ownership of it. This isn’t like the graphic arts industry. Small contractors without industry experience commonly establish their policies in accordance with graphic arts laws. As I said in my book, these sorts of policies are some of the biggest tip offs to a fake. A friend with over 30 years of experience describes this as “amateur hour”; with the tightening of the industry, she’s amazed there’s people like this out there. Their practices are highly embarrassing to the rest of us, no wonder designers are paranoid. As a contractor, if you legally attempt to enforce inordinate policies, you’ll find that apparel industry standards of practice take precedence. These things are considered to be unethical. Let’s say you get lucky and go up against an attorney who doesn’t know trade practices or the opposing party can’t afford to hire an expert witness (I’m available), your problems aren’t over yet. What new contractors don’t realize, is that if you’re any good, you don’t get referrals from your customers (you’re their best kept secret). You get work from your peers. If you’re doing stuff we think is unethical and counter to our practices, nobody is going to refer clients to you. Rather, we’ll do the opposite. Part of our value to customers is making good referrals. If I make a bad referral, I’m mortified and embarrassed; it damages my reputation and value. Relationships are everything in this business. I know it looks big, scary and unconnected if you’re on the outside looking in, but believe me, word gets around.

In most cases (caveats below), in the course of working with a client, if you happen to develop a method or process that is genuinely novel or unique, your client retains the rights to use it if they’ve paid for it. Of course you can’t strip this information from your brain, nor should you. Rather, this experience becomes a part of your intellectual portfolio and you are entitled to imbue future projects with the same method or process. This is why future clients will hire you. Just as you brought previous experiences to a given client’s project, you’ll take from them as well. It is because you have a body of work and experiences that clients will hire you.

Now, if you’re working with a client for whom you’ve developed a novel technique that is not specific to the uniqueness of their product, they’ve paid for its development and they don’t want you to keep the method in your intellectual repertoire, that is unreasonable on their part. Because this is outside the range of standard practice, you can charge more for that. Perhaps a set fee. If a client were to stipulate you are not entitled to use any methods you develop for them with future clients, you have two alternatives. Since most in this category are paper happy, you’d know at the outset and you can refuse the job. Second, you can charge more. I certainly would. They’re hiring you for the sum of your experience. You’re bringing to their project, knowledge that was paid for by other parties, so it’s not exactly fair that they expect to take advantage of the largess of your previous clients but don’t care to contribute to the source of the innovation themselves.

While it is not impossible that an inexperienced and untrained contractor could develop methods of such uniqueness they’d qualify to own them exclusively in the course of development of a client’s project, it is highly unlikely. Under such conditions, it could almost be perceived as arrogance if this is contractually required (as this contractor also has) at the outset. Creativity increases with knowledge. The more you know, the more creative you can be. A good example are designers who sew but can’t sew things like welt pockets. They tend to avoid using design elements they don’t know how to sew themselves, their designs are limited. It is more likely that a new practitioner will think their method is unique because their range of experience is limited. If one doesn’t know all that is out there (and how could they with policies like this), then one is unlikely to know if a method is novel or unique. Again, this is exactly like designers who haven’t shopped the market. They very often think their product is unique when an existing patent on it expired twenty years ago. Most often though, a contractor turns down work they don’t know how to do.

All that said, there’s some wiggle room for a practitioner to own a method and charge an uncustomary fee. I’ve had such experiences myself. These are trade secrets and aren’t commonly known to established parties. Because one knows them, one gets work that others don’t -and presumably- at fee schedules others don’t either. The client is hiring you specifically because you have specialized knowledge.

If you’ve developed a method independent of any client’s work, you own it. In such cases, if a client approaches you and you know your method would benefit them, you can contract for a client to use the method for a set fee (pass on royalties, trust me). I’ve had this happen. The client was financially strapped so I used the method they were already using or I’ve used the common or standard method.

If you’re working for a client and come up with an idea that is not related to the task you’ve been hired to accomplish, you also own that. I’ve had this happen. You can tell the client about your idea that is unrelated to your project and offer to sell it to them. What I’ve done is test the process (off the clock! -if you charge the client for time spent developing it, they own it) and freely offered the client the option to try it out. I’ve developed actual tools they can test for an unrelated process and itemized the money that my tool will save them. I’ve even left it up to them what the fee to use it should be because they usually offer me more than I would have asked. I also make it clear they don’t own it. However, as a courtesy to them, since I got the idea after working on their project, I give them a period of exclusivity. Say a year. Similarly, after the period of exclusivity, I don’t solicit their competitors. I only bring it up if the opportunity presents itself. Rarely is any of this written down. It is assumed you are professional. These are gentleman’s agreements. Your entire reputation is built on this.

Tangentially, you can only make these kinds of agreements with people who share your values (presumably with a history in apparel manufacturing). If a client is paper happy, forget it. Personally, I think being lawyer happy has a chilling effect. A designer is delusional if they try to stipulate you can’t work with other companies who develop similar products to theirs. They (should have) hired you specifically because you have experience in that market. If a designer’s non-compete stipulated I couldn’t work for others in that market when I’ve been doing it for years (which is why they’re hiring me), I’d pass. They’re nuts. They’d have to pay me a whole lot of money to get an exclusivity on my skill set. If a client is paper happy and I come up with a unique idea that is unrelated to the task to which I am contracted and I have not charged them the time to develop it, they’ll never know. I won’t tell them. They lose out on innovation. Why do people insist contracts protect innovation? Study after study prove the contrary. Actually, I just avoid paper happy designers altogether, they’re not worth the trouble. If a client presumes I need paper to keep me ethical, I’ll know that is true about them. You project what you are. If someone thinks people are out to screw them, it usually means they’ll do it themselves given half the opportunity. These people love paper. Anything not specifically detailed in the contract is fair game. Besides, most paper happy designers are usually copying someone else so it’s as though they want paper so you can’t tell on them. I don’t have time for unethical people. If I ever signed a contract (I haven’t) and found out later the client was “legal” but unethical, I’d have no problem reneging. Sue me. I’d be absolutely delighted, beside myself, to have the opportunity to tell a courtroom (or a blog) full of people how unethical you are.

There are other situations in which you can generate a separate fee, such are trade secrets that may not be known to even other practitioners. I have some. I collect them (some people collect tea cups). I have reinvented archaic sewing methods (if they ever existed at all) that are so arcane, my most esteemed colleagues don’t know them. You charge more for those or build it into your hourly. But again, if you’re new to the business, you are unlikely to have methods like this in your repertoire. Just because you haven’t done it before doesn’t mean it is novel or unique. Being novel to you doesn’t mean it is novel to everyone else. That’s just one reason a practice is built on relationships with your peers (more below).

Genuine trade secrets, things not known to adept experienced professionals, are quite rare. In the past, I’ve trained others to use them for a fee. The value of methods arises from their exclusivity. As more people come to know them (if they learn of them), the value of the method is diluted. Information has a way of getting out. Still, when I teach these methods to others, I stipulate they cannot publish them, nor can they set up shop teaching it to other parties like in a sewing school. They can use the method one on one with their clients, charging more than their competitors. It is presumed they will, why else would they pay for continuing education? If someone wanted information for publishing purposes, I’d even be amenable to that for a fee.

Returning to the sewing contractor who inspired this entry, this person had another untoward policy. Her contract (which she read to me over the phone) stipulated she could use her client’s pattern work and samples for marketing purposes. I just about fell out of my chair. Someone described this having happened to them in the forum and believe me, that contractor heard all about it (he mended his ways). Bar none, I couldn’t think of a more effective way to get sued by one’s clients. There’s two tiers here regarding marketing among professionals:

  1. With smaller companies it is considered dirty pool to advertise who you’ve worked for. An established designer will assume you won’t advertise that. You may tell subsequent clients one on one who you’ve worked for but you don’t publicize it. This is considered proprietary information! A designer’s most tightly held secrets are who makes her patterns and who sews them. Insult to injury, you never show someone a client’s work -unless it’s quite dated, several years old. I just about died when I heard this contractor intended to use current client work to solicit more business. There is one pattern maker on the web who advertises but closer examination reveals she didn’t actually make their patterns (did sketches and tech packs) and certainly isn’t now. 
  2. It’s different with very large contractors. Their reputations are stellar, they have behemoth reputations, matching the preeminence of their clients. They will commonly say they’ve produced private label for J.C.Penney’s and other retailers. Prospective clients of a similar profile, don’t care to know the minutia of what their competitors are doing anyway. They have very specific ideas of what constitutes their own private label program.

Even amongst ourselves, if a colleague is coming to visit, we put all of our client work away. We don’t tell each other who we work for! Among professionals, it’s almost considered rude to ask. If you work with professionals, a designer doesn’t need to be paranoid. Believe me, we’re paranoid enough for you. If a designer gets knocked off, we are their first target of suspicion. A larger contractor will have no problem showing you commodity products, but they definitely won’t show you anything with a custom fabrication. If a designer allowed a contractor to demonstrate their recent products and patterns to other potential customers, I’d think they were certifiably insane. We only show work that is several seasons old and we rarely have that, only stuff that wasn’t paid for or we did for ourselves. This is why we don’t have good portfolios. Reputation is everything.

Accordingly, this particular contractor asked how she was supposed to get business if she couldn’t advertise who she worked for because the reality is, clients will rarely tell their competitor about you -but that’s not how you get work. You get work from other pattern makers and contractors, your peers! However, if your policies are unethical, no one will send anyone to you. It’ll be the opposite. They’ll mention your name and advise the designer to avoid you. In summary, if you are a new practitioner in the trade, you cannot expect to be esteemed by others in the trade if you’re using untoward policies. This particular contractor has been adept at getting press anyway, featured in Money magazine and on NPR. She can’t handle the business that the press has generated as it is so I don’t understand why she needs the marketing materials she thinks she does. While I realize one is disappointed and regretful they cannot capitalize on having helped someone to become successful, it comes with the territory. Pattern makers and contractors will never be famous. If you want the limelight, I’d suggest you get into another line of work. How many times have you seen me publish who I’ve worked with?

In summary, I reiterate Hanlon’s Razor:

Never attribute to malice, that which can be explained by ignorance. Or, [Any] sufficiently advanced cluelessness is indistinguishable from malice.

I don’t think this contractor is a bad or unethical person. Not in the slightest! I think she was doing the best with the information she had available to her although she could have been more diligent (below). I feel she has a unique skill set that many of you would do well to avail yourselves and I look forward to hearing that she has changed her policies. In such case, I’d have no problem sending her more work as she has the table time to take it.

As it happens, this was brought to my attention by someone who’s read the book. They saw that the contractor’s policies contrasted starkly with established standards I’ve described. That was exactly what the book was designed to prevent; it’s why I wrote it. While I understand financial limitations, she could have borrowed it from the many she knows locally who have it, particularly when it’s been mentioned that she should read it. Maybe she didn’t have the time? Did she have time for this problem? This contractor freely admits that locals who’ve read the book are leagues above clients who don’t have it, saying it’s a pleasure and so much easier to work with them. I just do not understand an individual’s resistance to learning, particularly a professional. Would you see a doctor who hadn’t kept up since medical school? Thankfully, (most libertarians will dislike that I say so) most professions are regulated. Practitioners are required to learn continuously. Ours is not. Anyone can open a shop and call themselves whatever they like, posing a danger to themselves and others.

Speaking of continuing education, I’m torn about trade secrets. I want the methods to be disseminated because they can dramatically improve product quality and knowing how to do difficult seaming (for example) will spur design innovation (the more you know, the more creative you are). Still, these can take years of personal time to develop. Just as a teacher at a college gets a salary for instruction, so should anyone who teaches. That’s why I don’t publish them here. I’m largely uncompensated for what I’ve already published here, only an insane person would think publishing more is likely to change that. This is why I’m starting a private blog, by subscription only. Unlike us, home sewers have lots of venues to learn, we don’t. For people in the industry, there is no such thing as continuing education -other than one on one for prohibitive fees or by getting another job you only take for the experience (you pay a toll for some of these jobs!).

My largest ongoing expense is my continuing education. Traveling to Washington DC to study at the Library of Congress cost four months worth of rent. Taking these trips to events costs money too. I have no business to attend to there, I don’t have a booth, I’m not showing a line. I’m not saying everyone should invest to the extent that I do but people are beyond unreasonable if they assume one should just give it all away for free. You have to invest something, even if it’s only the time it takes to read a borrowed book. The alternatives as you’ve seen in this entry, can be worse.

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  1. andrea says:

    Well written, Kathleen! I loved the depth that you explored the topic. It’s true that we all need to contribute to our own continuing education, and there is a cost for doing so. Thankfully we don’t have to keep going back to college for degree after degree (one more personal growth and adjustment class would send me over the edge). In my opinion, continuing education is way worth it…you learn from people who are ahead of you and practicing.

    Thanks for the post, and let us know when your subscription blog memberships will be available for purchase!

  2. j. says:

    I do not normally comment to say that I like a post, but I’m doing it for this one. ;)

    Tangentially, you can only make [gentleman’s] agreements with people who share your values.

    I can only echo what you’ve written on the subject. The majority of people who seek out a standard NDA before they talk to a contractor (in any manufacturing area, not just this one) have never done business in that area; they have no business plan prepared; the lawyer is often their first stop, because they’re starting their research at the wrong point. (The majority, but not all; and this is highly unscientific because it’s based on my experience.)

    In a sense, this type of entrepreneur has no values; not because they’re morally bankrupt or anything, but because they’ve done nothing to try to identify those values, and they think the lawyer will be the one to fill that vacuum. Sometimes the lawyer can do that; but very often, the lawyer can’t (and even if the lawyer has expertise in that very subject area, they don’t want to be held responsible for that one time when somebody doesn’t live up to industry expectations).

    Going off on a bit of a tangent on behalf of the battered NDA, there are situations where getting that NDA signed actually has value, and not for actually enforcing. For example, if the Great Idea is going to be the subject of a patent application (even in apparel!), being able to prove that a disclosure to a contractor prior to the filing of a patent application was not a public disclosure may protect the validity of the patent down the road. Sure, one might be able to prove confidentiality by having experts testify about common practices, and whether the contractor in question abided by them; but it’s cheaper to prove that the NDA was signed.

  3. Lisa NYC says:

    Kathleen wrote:
    If a client presumes I need paper to keep me ethical, I’ll know that is true about them. You project what you are. If someone thinks people are out to screw them, it usually means they’ll do it themselves given half the opportunity.

    Ain’t that the truth! LOL. Love the post, Kathleen!

    and PLEASE let us know when the subscription-based venue is available…just what I need for my continuing education!

    With friendship,

  4. jess says:

    Yes, continuing education is what it is all about. I have learned so much since being a member of the forum, which has only been a few weeks, but I’ve been reading the blog for longer than that. And I am so grateful to have your book, too, Kathleen. It makes me feel so much more confident about taking the leap to have my sewing contracted out. But, back to the idea of continuing education…I try to learn something new everyday, if I don’t then I am not advancing myself and my business. I have been investing in myself and my business for 5 years now, and don’t regret any of it, even the mistakes, because it has all led up to the point where I am at now, which is finally feeling ready to make my business happen. Had I not had the resource of the FI site, I don’t think I would feel this way yet. But, I think that what is important for anyone, at any stage in their life, is to realize that there is ALWAYS more to learn. Educating yourself in some way, everyday, is the best thing people can do to improve their life, society and the world around us.

  5. Olga says:

    I just interviewed a contractor, she said, if she makes pattern for me (and I’d pay for its development) I can use it only to order sewn items from her and I can’t take it to any other sewer… she said it would be her intellectual property… even if it was, it would be made to my design specs which is my intellectual property, isn’t it? what’s the point for her to do this?…

    Thank you Kathleen! luckily, I came across this article right before the interview.

  6. Dee says:

    Great post! I was wondering whether this culture of gentleman’s agreements applies worldwide. I’m located in Asia and as a foreigner, I’m so used to being taken advantage of that I’ve become very cautious. I wonder whether contracts are the way to go or not in that context. Any advice?

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