The Real Contract Killer
I learned a long time ago, and I hope it goes without saying, that a professional really must insist on working with a contract in place. It really is better for everyone involved, as it, more than anything establishes expectations on both sides.
Regardless of how many times you see it happen on Twitter, if the designer gets all crafty and puts in 30 hours on something outside the spec, it’s not their place to complain when the client doesn’t want to pay for it.
And we accept this sort of thing on ourselves so that if the client tries to squeeze the turnip for a few extra this or that for the same pay, there’ll be a leg to stand on. The leg doesn’t have to be a jerk about it, but at least there’s that objective buffer between two self-interested people that says, “Excuse me” without having to hurt any feelings. It takes the guesswork out of the speculative creep both the designer, wanting to make something awesome, and the client, wanting something awesome for much less than the price of awesome, develop behind their eyes as the project bears on.
Or so it would seem.
Now, I more or less practice what I preach. To speak in generalizations, designers largely want to spend their time creating and at best stomach the business end of things. Aside from explaining in a nutshell why so many of us are broke, the legal and financial side of being a professional is an enormous drag. It seems reasonable that we try to skirt the edge of good judgment to avoid being bored now and again when it seems safe. Like a professionalized form of jaywalking, more often than not we’ll do it until we get caught or run over.
I know for me personally, on small jobs, I have been known to use it as a way to step back from being cynical and allow humankind the opportunity to not be so rotten, like it may have been in the past. This can be a beutiful, refreshing thing; this trusting those you work for, to pay you and not overwork you. And so it goes until—I’d say maybe as often as every third or fourth time you try it?—that this comes crashing back to haunt you and leave you considering all sorts of violent response.
(Before I invoke the wrath of Monteiro, I will add the discliamer that while I am a Creative Professional (assuming Mike is less vomit-prone to the adjective than the noun), that this perceived ‘softness’ is admittedly ‘weakness’ but that it can also be described as entirely lazy. I am also, specifically, not complaining, at least not at this point in my career, about having been ‘taken advantage of’ due to my own stupidity, kindness or laziness.)
What I am about to describe instead, back to the topic of having contracts, regardless of if they suck, is the more Bizzaro-world complement to the above described Wages Of Creative Sloth. On this point I actually fall victim to the opposite. My struggle has been more about coming up with a document that not only:
a) defines the job at hand but
b) also protects against all the various and crazy ways I’ve been screwed in the past.
At one point, this drove my contracts to well into the teens of pages for even the smallest of jobs. And while thoroughness and passing legal review are both well and good, a contract really has to be short enough so that the client might actually read it. We are professional communicators after all, and we owe it to ourselves to address the ridiculous nature of the problem.
I’ve seen brave attempts like Andrew Clarke’s Contract Killer, and Rachel Rayns’ Work Terms. These are great starts but I’ve always left them thinking how nice it must be to go into things so incredibly naked and short-handed. Had they, for example, never had a client assume the cost of printing or photography was included in the design fee because it wasnt explicitly stated?
By far the worst incidence, almost comically so, was a time several years ago when I had already quit a project I had been on for a few months. I had done a redesign for them and stayed on as the production artist, but the work eventally outstripped the pay (and certainly the enjoyment), while the dynamic I had with the client grew increasingly awkward. The two made the other worse (I was to learn) as the business was in the late stages of going under. And so I resigned the account.
The client contacted me a few days later to ask if I could stay on for another few weeks. I agreed and drafted a new contract (like a grown-up), then emailed a copy about a week before we were about to start. He came by the last evening he could have to hand me a signed copy.
One of the clauses in the agreement was an acknowldgement that, due to the very, very low amount paid on each job, that I would retain the copyright to the core files. By defining the files as mine (they already were of course by copyright law), I would be the only one that could work with them. My thinking was that, in the event that I chose to continue on, I could at least try to make something in the long term as the production process (theoretically) got simpler over time. Or, if he chose to replace me, I could recover some of the ‘lost wages’ by selling him the files.
The job ended and—surprise—the business had been sold. That was fine, I responded. Would he like me to make an invoice for the new owner for the purchase of the files?
“I don’t understand,” I replied, “this is all in the contract you signed like two weeks ago.”
“Yeah! But I didn’t actually read it!”
Sigh. Turns out he didnt think it was necessary and that, having never had a designer give him a contract in the past, that mine was invalid. I was out of line, and had tricked him. He threatened me with legal action.
It wasn’t enough money to really get that upset about, so I caved; let him win. I did, however, make copies of the “rights ownership” pages of the Graphic Artists Guild Handbook, highlighting where, in fact, I was not making any of this up. I handed it to him as I gave him the discs with his assets, and explained the situation. I very well could have killed the sale of his business or worse.
I asked, “Do you see how you could have handled this differently now?”, thinking he might use this ‘close call’ as a learning experience.
“Yeah” he shrugged. “Next time, I’ll hire a designer that doesn’t have that book.”
Anyway: lots of variables means lots of text means lots of pages, and I haven’t found a good solution yet. But I think it’s time I do. To begin, I will no longer send contracts by email if at all possible. I think sitting down with the client, explaining each part and having them initial each piece is a good next step. It can’t hurt, and, at least, if the client can’t be inconvenienced to do so there’s another sign it’s not a good fit. One way I’ve already solved most of the problem by improving my client scrutiny before we even get to the contract stage. Things become much simpler when I can reject a job based on how insufferable a personality may be.