Let me set the scene. You finagled your opportunity to present your ideas to the client, you debated and fought with colleagues over the concept, you deliberated over the layout and agonised over the stock you even cried when you accidentally sliced yourself with the art knife whilst pulling the story boards together at one o’clock in the morning on the day of the pitch. You literally shed blood, sweat and tears over the whole thing.
But the hard work paid off! You killed with your pitch and the client seemed to love it. They muttered something about the cost but overall they sounded enthusiastic.
Then the email arrived. “Unfortunately we regret to inform you that on this occasion…”
The firm chose someone else, you think what the hell. You may have thrown one or two of the collectable cartoon stress toys that were adorning your desk into the bin, but you soon bounced back and put the whole thing down to experience. Some weeks later you happen to catch the firms new look and are almost bowled over when you realise that if it’s not exactly your work it’s so damned close as even your own mother might think you had done it. You feel your blood start to boil and you start looking around for a cartoon stress toy...
Sound familiar? Thankfully it doesn’t happen very often, but when it does what are your rights? Could you have protected yourself better?
The short answer is ‘yes’, but how?
There are a number of ways this can be overcome and of course there has been a lot of debate around the subject. The Design Council and organisations like the Design Business Association advocate that Design Consultancies should charge for pitching, after all, you provide a professional service, you should be paid, and the ownership of the ideas should be part of whatever terms and conditions can be agreed. However, the truth of the situation is another matter. Research from the Design Council said, “For many, free pitching is a fact of life. Almost half of all design consultancies (44%) and freelances (43%) say they either always or frequently have to pitch creatively for free” ( Design Council, website, 2011).
Therefore if free pitching is a fact of life then consider other more simple measures to protect your ideas.
1. Consider imposing your own pitch terms and conditions on the organisation (in a nice way). Make it clear that all the rights in the materials belong to the design consultancy.
2. As far as possible make sure that the work carries the copyright sign along with the date and name of the design consultancy and make sure you keep the creative work so if there is an infringement in the future you can more easily show that you created the work in the first instance.
3. Make sure you remember to ask for all work to be returned if you are unsuccessful.
If the organisation insists on you signing their own terms and conditions or an agreement before the pitch, don’t just sign it and send it back to them, check that you understand their position on the intellectual property (IP) of your designs. Some contracts will state that the IP in the pitch will belong to the organisation regardless of the fact that they don't engage you to do the work. If you are not happy with the terms don't sign them.
Of course all of this depends on the value of the work. As the saying goes, “You wouldn’t use a sledge hammer to crack a nut”, and you probably wouldn’t want to overwhelm your new client with lots of contractual stuff for a relatively minor piece of work. But as I said last issue, you never know what impact the designs of today will have tomorrow.
So if you think you have to free pitch to stay in work then take some precautions otherwise consider charging – you wouldn’t ask for your boiler to be fixed for free just to check the plumber was competent!
Amy Kerr
If you want advice about Intellectual Property then contact Amy on 01202 725400 or email her at a.kerr@hklaw.eu
Alternatively, if you would like more general corporate advice why not contact Humphries Kirk Commerical Solicitors in Poole.