Wait a second...didn't I design that?
July 5, 2011 2:56 PM   Subscribe

Design client used my work after telling me I didn't get the job. I'd just like to get paid!

I recently did about 20 hours of spec work for a design client. After the second round the client told me they were "almost definitely going with me" but just wanted to see one more round of work with a few different variations. I submitted the work as requested, and after a week asked for feedback. The client told me he was busy but would get back to me soon. Over a month passed before he left me a voicemail message to tell me they unfortunately weren't hiring anyone for the job, but he just wanted to talk to me about "one more thing."

I didn't reply. Every telephone conversation with this client has taken at least a half an hour, and if he wasn't going to hire me after three rounds of designs and after nearly (but not actually) promising me the job, I wasn't going to waste any more time on a conversation with him. I expected him to email me about whatever the "one more thing" was, but he never did.

WELL! Turns out they did end up using my design for branding, titling, and merchandise. It wasn't exactly the design I had submitted to them, but nearly: exact same obscure typeface I had found, and while my design was at a 30 degree angle, the new design was not set at an angle. Everything else was the same.

The client is a nonprofit and I had liked the project they were working on. I thought about sending them a very friendly-worded email & invoice for about a fifth of the amount the project had been quoted (the project was initially slated to be a much larger project, and what they used is only a portion of the whole project)

I don't want to screw them over, sue them, etc... I'd like to get paid. What is my recourse here? As someone starting out with freelancing, how do I avoid this situation in the future?
posted by MaddyRex to Media & Arts (18 answers total) 9 users marked this as a favorite
What does your contract state?
posted by halogen at 3:00 PM on July 5, 2011

Response by poster: Since I was "competing" for the job, there was no contract. Huge mistake, I know.
posted by MaddyRex at 3:01 PM on July 5, 2011

What do you do now?

A nicely worded letter wouldn't hurt. It's about the only option you've left yourself since you screw them over or sue them. (Frankly I think you're being too nice. Anyone who would steal from you isn't worth a damn.) I'd tally the amount due as your hourly rate * the 20 hours since that's the amount of work you did for them, regardless of what they used. But if whatever amount you invoice them for is less than a few thousand dollars I'd just call it lesson learned and move on.

How do you keep yourself from having this happen in the future:

Simple. Don't do any work for anyone without getting paid. Don't do any work without a contract. Make sure that contract covers the transfer of rights.
posted by Ookseer at 3:07 PM on July 5, 2011 [5 favorites]

Since I was "competing" for the job, there was no contract. Huge mistake, I know.

I think it works in your favour here, at least if you're in the USA. Since there was no contract, there has been no transfer of rights, you were the originator of the graphic, and copyright law in the USA has been warped to give immense and largely unchecked power to rights-holders.

Especially if their design is your submitted artwork, rotated (as opposed to their own artwork imitating yours, rotated) then it sounds like they've inadvertantly given you an awful lot of clout over them.

I'd suggest a nice letter, with a bill. Perhaps assume (or pretend to assume) that it was an oversight that your work was used without recompense (they did try to call). Perhaps the letter should include some (lawyer-assisted?) language spelling out that their material is currently unlicensed from the rights-holder, creating unnecessary vulnerability, and you'd like to help them resolve that.

I don't want to... ...sue them, etc... I'd like to get paid.

You should leave them unsure of the former, in order for you to achieve the later.
posted by anonymisc at 3:21 PM on July 5, 2011 [15 favorites]

Unless you signed a contract saying that they own whatever you created (even if on spec) you own the rights to what you created. They used it without permissions, that is a violation of your rights. Send a letter, include a full bill. Tell them you are willing to negotiate. Even if they are a nonprofit (I work almost entirely with nonprofits), they stole your work. Do not submit a partial invoice, because that's what they will start talking you down from.

In the future, refuse to work on spec, any client that tries to force you to work on spec will never value your work. Write up a basic contract that you can edit per project, submit it as part of your pitch.
posted by thebestsophist at 3:26 PM on July 5, 2011 [4 favorites]

The client is a nonprofit and I had liked the project they were working on.

You're probably already aware, but non-profits have a bad reputation in this respect. A lot of them are used to getting things free (people donate their time, money, services, etc). A lot of people unconsciously think that because it's a good cause, not paying you is not at all like it would be if Megacorp-Industries&Co did the same thing. And finally, because people naturally don't value free things as highly as when they pay for the, people who are donating or discounting their services can get unfairly milked without the recipient understanding the full cost to the providers. The obvious example is asking for lots of little changes, changing it back, altering other things, etc, because hey, why not? It's free!

We should do the good things, and help where we can, but unfortunately we also have to take care to set boundaries with care when dealing with organisations that operate under vastly different boundaries.

posted by anonymisc at 3:34 PM on July 5, 2011 [4 favorites]

I don't want to screw them over, sue them, etc

Repeat after me:

Being paid for the work that I do cannot ever be unfair or an imposition on other people. If they do not wish to use my services or lack the ability to pay me for the value of my time then they have the right to not engage me. The work I do has value. People who steal from me are not being maltreated when I force them to pay me what I am worth. I am not screwing someone when I prevent them from stealing from me.

With us now? If you need reinforcement you should watch Mike Montiero say it and explain why and how you can prevent from getting into this in the future. He very compellingly explains why putting yourself in certain circumstances makes it more likely it'll happen.

In the mean time I'd suggest simply sending them a bill. You can quote it at a very reasonable rate if you want (I wouldn't) but include a cover letter indicating that while you were glad to do work to try to get the work that does not mean you have released your copyright on the work. If they wish to engage you for further revisions you can negotiate a rate but if they aren't willing to do that in the next 24 hours after receipt of the letter then you expect payment in full.

You probably need to do something like this anyway before you have any real change of prevailing legally. Civil matters exist to make things right, if possible, and given the nature of this work you almost certainly will have to give them the opportunity to simply stop using your stuff.

Once they refuse to do the right thing I'd suggest sending a DMCA takedown notice if it applies anywhere. Having their shit yanked off the internet will likely get their attention toot sweet.

And seriously, quit worrying about the feelings and opinions of thieves. The best that can be said about this is that they didn't see repeatedly using up your time and effort as theft. Ignorance of being a horrible person only makes you an oblivious horrible person, not a good person.
posted by phearlez at 3:39 PM on July 5, 2011 [32 favorites]

I run a nonprofit that is, I guarantee you, smaller than this outfit, and I pay my graphic designers and I give them credit. I can't pay them market, but I pay them what we can afford, according to an up-front agreement. This is stealing.

Nice letter, and an invoice. Politely assume that the call you missed was the one where they were going to say something about how they intended to use your design. Be polite, but firm and assertive.
posted by Medieval Maven at 3:47 PM on July 5, 2011 [3 favorites]

Escalate to their board as well.
posted by bottlebrushtree at 3:49 PM on July 5, 2011 [1 favorite]

I might add that if you are in the US, certified, return-receipt requested is how you should send the letter.
People become very frightened because lawyerly, and you have proof you sent *something* when the invoice becomes magically "lost."

I'm sure other countries have the equiv.
posted by xetere at 4:02 PM on July 5, 2011 [1 favorite]

Copyright infringements go for $150,000 per item using your work, not to mention webpage views, so fuck 'em with a hairbrush. Time to be a professional.
posted by rhizome at 4:17 PM on July 5, 2011 [1 favorite]

Letter with invoice, failing that, get a local law firm to write the next letter. I don't know first hand, but have heard from other freelancers that a sternly worded letter from a law firm usually results in getting the money and the letter may only cost you $50-$100.
posted by Brian Puccio at 4:21 PM on July 5, 2011


You deserve to get compensation for your work, which by using they have impliedly admitted was acceptable. In all likelihood their further wasteful calls were probably to get you to make the changes they evidently made themselves. The idea that it is somehow immoral for you to demand compensation is loony, unless you and your family can somehow subsist on good feelings.

If this happened to one of my clients, I'd send a bill, without any discount at all and offer installment payments only if asked with the full amount due immediately if they miss a scheduled payment. Discounts are for people who ask and who don't steal from your family.

"Steal" is not a harsh word here, though it's not very precise. The better word for what these people did would be "fraud." It is generally not lawful to coerce someone into doing work under the guise that they are "applying" for a position that does not in fact exist, meanwhile concealing that fact and also the fact that they intended all along to use your work without paying for it. In more than a few jurisdictions this kind of thing would entitle a plaintiff (you) to punitive damages in an amount sufficient to deter that conduct in the future.

When you invoice these people, do it at your full regular rate for contract work in the private sector. I wouldn't negotiate, either. If they don't respond or don't pay, consult a lawyer.
posted by Hylas at 4:56 PM on July 5, 2011 [2 favorites]

What Mike Monteiro said. Bill them and wrap your invoice in a lawyerly letter.
posted by holgate at 5:28 PM on July 5, 2011

Send them an invoice, with a note mentioning that 'you've noticed they decided to use your work after all!'.

If they dispute it, 'tell them you don't want to go to lawyers', therefore implying you would, if you needed to.

And remember: non profits are businesses, they're just businesses that push their profit back into the business. They are not exempt from paying for your work.
posted by Kololo at 6:19 PM on July 5, 2011 [2 favorites]

I agree with giving them some benefit of the doubt re the call. But even if, "We'd like to use your work" was to have been the intended subject, they have absolutely no right to use the work without having secured explicit permission. That they didn't make even a 2nd attempt to reach you is evidence of bad faith, in my opinion.

Discounts are for good clients. Companies you reliably turn a profit on. Who pay early/on-time, in full, and without fussing. Nothing about this company fits that criteria.

Full bill, no proration, due upon receipt. State a (non-usurious**) daily late fee, to help them see the discount value of getting onto the right side of the law quickly. I'd be very tempted to set the effective date of that to the first day of usage. But wouldn't recommend doing that without thumbs up from a lawyer.

'tell them you don't want to go to lawyers'

Don't do that. Really undermines the strength of your negotiation position.

** Check the statement of your highest interest credit card. Copy their daily rate.

P.S. Take screenshots of everything before you hit send on the invoice/email.

Also, yeah, take this as a harsh business lesson. Companies that value professionals expect to pay (and be paid) professionally. Value yourself as a professional by politely turning down requests for spec. This is what portfolios, references, testimonials, et al are for.
posted by nakedcodemonkey at 7:55 PM on July 5, 2011 [4 favorites]

i nth letter with invoice, with a letter from the lawyer as a next step.

and let this be a lesson to never do work on spec if you value your work, your career, and your industry.
posted by violetk at 8:19 PM on July 5, 2011 [1 favorite]

Also see No-Spec about how to go about this in the future
posted by lalochezia at 2:37 PM on July 6, 2011

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