The Cost of Free Proposals
IP Newsletter, February 2007
Designers dread submitting proposals. Not only is time spent preparing proposals uncompensated, there are inevitably follow-up inquiries and additional uncompensated work required. And clients tend to think they can use concepts pitched without consent or credit given.
After wrestling with issues concerning free pitches, the Hong Kong Designers Association will launch a campaign banning free creative pitching next month. The HKDA felt that designers are professionals whose time and creativity are valuable assetsdeserving respect and protection. Free pitching – where clients ask several designers to submit competing designs so they can choose the right designer to help them solve design problems – diminishes designer professionalism. They have to submit work speculatively, with no assurance of payment. Free pitching leaves an impression that their time is not valuable and that design problems are solved in a vacuum without the need for designer/client interaction. Overall, free pitching is simply bad for the industry.
But for new designers, the temptation of landing that big project makes pitching irresistible. For others, free pitching may be necessary to maintain their status as major players. Thus, four teams of major architects and designers felt it was necessary to work for hundreds of hours in preparing their pitch for the Tamar Project for the Hong Kong Government’s new headquarters complex. Since their work will be on public display shortly, they feel that pitching for this project is worthwhile.
Unfortunately, most pitches are not displayed publicly. What can designers do to protect the value of their proposals? We noted before the difficulty of drawing a line between legal copying and infringement. Copyright law protects original designs but separating originality from the ordinary is not easy. Original features are often only a small part of the overall design. Yet, even mundane features require much time and effort to design. Do designers have to give away ordinary features not protected by copyright?
Where copyright law offers inadequate protection, designers can consider alternatives. They can contractually limit the use of their pitches to evaluating designer suitability for the project. Any other use will result in clients paying designers for time expended in preparing the pitch. Since free pitches are intended to help clients find a suitable designer, no other purpose should be permitted.
To illustrate one possible solution, see the attached sample letter agreement, which can be sent with a pitch. The pitch should besealed so that the letter agreement must be read and signed before the seal can be broken and the materials accessed. If a client does not agree, the pitch should be returned unopened. Please note that legal advice should be sought to determine if this method is suitable for your use.
In December, we wrote about Chan Nai Ming, the first person convicted of using BitTorrent technology to upload movie files. The Court of Final Appeal has just agreed to hear his appeal. The hearing is scheduled for May 9th. We will keep you posted.
This letter does not constitute legal advice and will not be suitable for all circumstances. Please consult your legal adviser on each set of particular circumstances.
Dear [client’s name]
Re: [name of project]
Thank you for providing us with the opportunity of preparing and submitting this proposal for your consideration. We have spent significant financial and human resources, care and time developing this proposal. It is our valuable asset.
The proposal contains copyrighted materials and design features that took hours to develop. You are welcome to use the proposal solely for the purpose of evaluating our suitability for this project. You agree that any other use of the materials, including its concepts, features or ideas, is strictly prohibited. The materials may not be copied, modified, used in any way or disclosed to anyone.
The proposal is sealed and should not be opened unless you agree with its restricted use. Breaking the seal is your acknowledgement of the value of our time in creating the proposal and your acceptance of a binding agreement between us concerning the limited scope within which you may use the materials.
If you use any of the materials other than for the sole purpose of evaluating our suitability as your designer, you agree to compensate us at our customary billing rates for the time expended in preparing the entire proposal and to reimburse us for expenses incurred in its preparation. In the event of unauthorized use, we will bill you by invoice which will show our time, billing rates and disbursements. The invoice is due and payable upon receipt.
Please sign this letter below to indicate your agreement and return a signed copy to us.
If you have any questions, please let us know before you break the seal. We trust you will be pleased with our proposal.
ACKNOWLEDGED AND ACCEPTED
For and on behalf of