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.

Update

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.