Hey gang!
I have a potential client who wants to hire me for an illustration job. The client is a collective of 8 women in the fashion industry. They want a line drawing representing all of them to use not as a logo, but as a brand icon. It’ll be everywhere (where all, they’re not sure yet), but website, posters, etc. Would you format your price as an illustration with usage rights? Or more like a graphic design logo?
Thanks for the insight!
Collette
I’m not quite sure of the difference between a “logo” and a “brand icon,” but since this icon will be used multiple times as an identifier of their brand, I’ve got to assume they want to own it outright. A business owner would be foolish to hang her brand on something owned by someone else and restricted by usage limitations.
Full transfer of ownership on completion. Just like a logo.
Since the intended use is as a part of their brand, they could want to trademark it down the road, so you should give them all the rights and charge accordingly.
I generally agree with PrintDriver but I don’t think there’s enough information to definitively answer this.
I know you said fashion industry, but if this is a local group or small business, just sell it as any other piece of art. If however, it is the centerpiece of a massive national / multinational marketing campaign, you need to talk to a lawyer to make sure you get paid properly. A contract can be written where you will get paid each time they use it, like royalties. But if you sell it outright. You have absolutely no claim to further payment.
If you go to The American Bar Association website you will find an option to pay $50 for 3 phone calls with a lawyer in your field of inquiry. An hour is plenty of time to discuss your questions and the lawyer will know what category your work will fall into.
Sorry Nevermore, but I disagree with getting attorneys involved in something as simple as decided how much to charge a client or what rights should be sold on a logo or “branding icon”. This is a simple daily business decision, not something warranting legal advice.
As I mentioned, a client would be foolish to allow a designer to keep control over something as important to a business as a brand icon. Even assuming this fashion collective is composed of foolish women (which I highly doubt is the case), it would be unethical for a designer to attempt to take advantage of their foolishness by retaining copyright ownership and demanding royalties down the road for something that should have been sold outright to them at the beginning.
Just-D
There is a distinction you seem to have missed (no offense) between getting legal advice and taking legal action.
You are absolutely right that the last thing you want is a lawyer taking action - calling up some nice old ladies to say they need to pay their client thousands of dollars or whatnot.
But there is a major distinction between our points of view. I am saying that, from his description, we (all of us) here, don’t have enough information to really know if this should be an outright sale or if a simple contract should be drawn up. A copyright lawyer would be able to classify the job and therefore inform the designer about what sort of payment is best applicable. That’s all.
It’s only about acquiring information.
if you have to take legal action you’ve already lost the client.
…and your argument breaks down in the last sentence because you’ve made the assumption that it should have been sold to them outright.
This sort of thing IS a 20x times a day decision for me. But to make that decision I’d have to first, have experience and second, have all the information. I don’t know how anyone can suggest NOT to learn something as you seem to be.
No offense taken, but you seem to have inferred something that I didn’t write.
My comments were about a lack of need in seeking legal advice, which I don’t think is even remotely warranted in this case. The scenario the original poster painted is one with a simple answer that requires no legal opinions: logos are sold outright.
I took that statement as taking action. And your whole point seems to be that talking to a lawyer will somehow muddy the process. Getting legal advice has absolutely no effect on the process between client and artist until a lawyer makes contact.
The designer made the distinction that this is NOT a logo. This is Branding. Branding is a different process completely. Again, we don’t have the info we need to answer this.
There are innumerable instances where it would be a waste of time and money to consult a $50 telephone attorney as you suggested (or any attorney, for that matter). Making a decision on whether or not to sell usage rights to a “branding icon” being one of them. If I contacted an attorney each time a decision of this sort needed to be made, half my income tax deductions would be for covering needless legal fees.
This isn’t a legal question unless one has made the decision to sell only usage rights and needs advice on doing so or a contract written up.
In this case, though, it would be far better to just ask the clients if they wanted to buy the illustration outright or just buy limited usage rights, then figure out the fees involved.
If it were me, I would, of course, advise the clients to buy the icon if it’s intended to become part of their brand so they did not risk me reselling part of their brand equity to others or raising the licensing fees down the road.
Of course, if it were me, the dilemma would never come up since I would just sell it to them. Whether one terms it a logo or a “branding icon” makes little difference. According to the original poster, it’s a line illustration of the principles in the company to be used as part of their brand.
If upon further client questioning, it turned out they just wanted the icon for, say, a small limited run advertisement, that might or might not run again next year, fine. Simple usage rights would be a possibility, I suppose (although I, personally, still wouldn’t go there). But this is still not something to ask an attorney about; it’s something to talk over with the clients to see what their preferences would be.
Whether it is a sale or “contracted design” a contract is still required either way.
But it isn’t any different than any other design contract you would do as a professional designer.
Lawyers charge by the phone call or the minute. You don’t need to contact a lawyer to decide what to charge in this case or how write up the contract.
If you are just starting out, you might want to consult with a contract lawyer to draw up your boilerplates, but since the op is asking which way to go, I’m assuming they already have that part down.
I honestly think this is a very good discussion and believe we agree on much more than we disagree. We just seem to be talking about the fine points in which we disagree. Cool. I hope you aren’t taking anything I write personally because that isn’t the intention.
“There are innumerable instances where it would be a waste of time and money to consult a $50 telephone attorney as you suggested (or any attorney, for that matter).” Exactly. It’s $50 for 3 - 1 hour phone calls. It’s literally the cheapest way to get legal advice. If I didn’t know if I should get paid $200 or $2000, I would spend that $16.67 to find out.
“In this case, though, it would be far better to just ask the clients if they wanted to buy the illustration outright or just buy limited usage rights, then figure out the fees involved.” Exactly. There needs to be a structure for the sale: the simplest being outright ownership.
But with usage rights, you aren’t going back to the client after the fact and RE-charging them. You’ve already agreed ahead of time that, for example, “If this image is used in a film (yeah extreme example) an additional fee of “$X” will be paid to artist.” That’s why, imo, you ask a copyright attorney “Do I need a contract or just an invoice (under the given circumstances)?”
You’d also mentioned “… it would be unethical for a designer to attempt to take advantage of their foolishness by retaining copyright ownership and demanding royalties down the road for something that should have been sold outright to them at the beginning.” Exactly: I would never suggest acting in an unprofessional manner, nor would I suggest holding art for ransom. I suggest only that the designer protect herself in the chance that the client might be taking advantage of her.
You don’t need to ask a lawyer if you should charge $200 or $2000.
Unless it’s your own company lawyer and there is something out of the ordinary about the job.
Seriously, your freelance pricing structure should pretty much gauge what you charge in any particular design circumstance. If you felt the number should be $2000 because you know the clients and time involved, would you only charge $200 because the lawyer said so?
“Whether it is a sale or “contracted design” a contract is still required either way.” Exactly: A sale is the simplest form of contract, yeah. But the question here is, “Does this transaction require more than a simple receipt?” (Which is itself proof of a contract (contract being determined if there was a “meeting of the minds” = an agreement.))
“Lawyers charge by the phone call or the minute. You don’t need to contact a lawyer to decide what to charge in this case or how write up the contract.” Yes and No.
Earlier in the thread I referred the artist to The American Bar Association website which has a link that if you pay $50, you get 3, 1 hour telephone calls with an attorney in your field of inquiry. They do it to fulfill their pro-bono requirement (usually 10-15% of “billable” hours must be pro bono work). I personally need to talk to a lawyer maybe once a year for something minor - usually about international regulations concerning labelling - soooooooo boring. So instead of 1. spending hours trying to find the right lawyer, 2. making an appointment, 3. paying a retainer…
…why not take advantage of the site and skip all the bull? I pay $16.67 to talk to someone who is hand picked by the ABA as an expert with direct knowledge in my field of inquiry for up to an hour, knowing afterwards that I have the right answer.
I think that’s a great deal and wanted to share what I consider a bargain source of hard information. I’m actually shocked by the idea that this is a bad idea lol.
Did you read the post?
…and if the artist had that structure she wouldn’t be asking the question. I suggest she talk to an attorney only because I don’t think we have enough details to assume this should be an outright sale. I know I’m in the minority here, but I don’t get how anyone on this site can actually just say, sell it when they don’t know what IT is.
In graphic design, “selling a logo” means filling out a contract that is much more than a cash register receipt. It means selling all rights involved with the piece and those have to be spelled out.
Labelling laws are totally different from standard graphic design contracts and in most cases do require some legalize that should be reviewed… But here, the OP is asking about a basic graphic design contract, As in which of two types she should use, the types every freelancer should already have boilerplate on. She obviously has the structure but isn’t sure what the industry standard is for this particular instance.
Nope. As you suggested, we’re just talking shop.
That’s not what I was referring to. By additional charges I’m referring to unanticipated future uses that lie outside the original agreement. Most contracts regarding usage rights involve things like limited time periods, geographical areas, quantities, exclusive or non-exclusive rights, etc.
The concern a client should have with only buying usage rights for brand-related items is that those limited rights hold the client’s brand hostage to additional fees when and if that brand needs to be extended in some way beyond the initial agreement.
Just for example, let’s say Debbie, the designer, sold usage rights to a logo-like branding element to Bill, the business owner. Let’s say this $1500 fee was for perpetual non-exclusive North American rights. So ten years down the road, Bill has built the brand into a multi-million-dollar success and wants to start selling and advertising his clothing brand in Europe and South America.
He calls up Debbie to negotiate additional usage rights, but Debbie, realizing his company is now worth millions, tells Bill that these additional usage rights will cost him a half million dollars. Furthermore, she threatens to sell additional non-exclusive usage rights to the brand icon to Bill’s competitor if he doesn’t pony up the money. Bill is now over a barrel and realizes how foolish he had been in agreeing to only buying usage rights.
Save the legal fee and just alter the boilerplate contract — just like any other job.
Not really. A PO can be sufficient to be considered a binding contract. Besides you’re conflating 2 separate legal disciplines: Contract law and Intellectual Property law.
An agreement becomes a contract when there is a “meeting of the minds” (term of art) - whether there is paper or not. That’s simply the law in the USA. That just isn’t up for debate. Sorry.
The single best way to prove there was a meeting of the minds (agreement of terms) is a paper receipt.
A valid receipt requires 4 things to be considered proof of contract:
As far as labelling laws I think you missed the point. I was just saying there is a very easy, cheap and effective way to get this answer and have no doubt of her position. A copyright lawyer can answer this in about a 10 minute conversation.
I know I keep saying this but I don’t think anyone here has enough info to DEFINITIVELY say she should just sell it outright. I’m sure any one of us could answer this with a little more info, but the artist is making the distinction that it is not a logo - but rely in the thread everyone is treating it like it is - and maybe it is…
But because she cannot clearly define what she’s providing, there is no meeting of the minds = no contract.