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ssarts's picture
51 pencils

Potential employer stealing ideas

Hello everyone. I've been reading the forum feed for a while now, but this is my first contribution. I've got a hypothetical question that I hope spurs some interesting discussion...

I manage a team of designers and we create watersports equipment for the company in which we are employed. Many times in the past, when interviewing potential candidates for design positions, I have asked them to complete a few re-designs for some of our existing products. Just to see how well their style meshes with the line of work they would be doing. I was asked to do the same thing before I was hired. Now, if the candidate is not chosen for the position, can any of the designs submitted by that candidate be used? Is there any type of contract that could be utilized by either employer or designer that would spell out the usage rights of the images without upsetting either involved party? Or is the artwork protected under some sort of creative license?

Thanks for any suggestions.
_Shawn

Commenting on this Forum topic is closed.

2512 pencils

Not that this isn't common, but I think it sucks to bring people in for job interviews, not hire them, and then use their work. Maybe there is some kind of disclaimer you could have applicants sign, but this would be pretty intimidating if someone really needed a job (and who among us doesn't know what that's like?) and felt they had no choice but to sign.

Why not have people submit designs for something just a little different, but in the same style you'd use? Then if you wanted to adapt someone's design to suit your product, you'd at least have enough of your own work in it to help you sleep at night.

My feeling -- and I'm not insisting that anyone agree with me -- is that if you use someone's work, you should pay them for it; coming up with a legal way to squeak out of that moral responsibility is reprehensible.

Mara

natobasso's picture
3953 pencils

Ditto!

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Powerpoint is not a design application

JimD's picture
2616 pencils

The thought of a company flat out stealing work (which make no mistake about it, that IS what you're company would be doing) is reprehensible.

That being said, any idiot that would do free work with the hope of getting hired pretty much deserves to get their work stolen. NO SPEC WORK!

I can totally see testing someone's computer skills by having them re-create an ad, etc... but people have portfolios for a reason. There should be no need for a "design test." If there is, then it's the wrong person for the job.

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Creative_NRG's picture
483 pencils

That is a blatant copyright violation.

http://www.rightsforartists.com/copyright.html

When an employee agrees to work for a company and paid their designs are owned by the corporation under 'work for hire' guidelines and they may do with them what they please. However, anyone outside of this scope, including freelance designers, retain the copyright to any work they create unless a specific contract is signed stating who legally retains the copyright to that work.

Taking a design which you do not legally own could land you in major hot water. Besides, if you like their design that much why on earth weren't they hired?

natobasso's picture
3953 pencils

Good points, with one caveat. Even freelance designers can have their work become 'for hire' under the right circumstances. Here in California If they work onsite using client equipment, for one, and/or if the client comprises more than 50% of their total income (can't remember the exact percentage), they then are classified as employees.

I know from personal experience that companies will try to 'hire' freelancers to avoid paying them health benefits, and yet they still claim ownership of the artwork those 'freelancers' create. The onus is on the company to follow the law but it's difficult to enforce unless designers group together for class action lawsuits.

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Powerpoint is not a design application

ssarts's picture
51 pencils

You're all assuming I'm a big bad employer out to screw the next artist out of their work and use it for my own profit.

Please read:
"Is there any type of contract that could be utilized by either employer OR DESIGNER"

If a potential employee walks in with a portfolio full of 'like' items and hands me a contract saying anything that I'm about to see is his/her property under some copyright law, would it hold up? Or do they even need to say it?

I'm a designer too. If I flipped the tables and asked everyone if I could walk in to an interview with the above type of contract that I expected the interviewer to sign, I'd probably get a different response. Something like, "you'd never get a job with an attitude like that" no employer would ever sign it, etc.

Hopefully you're right about the copyright Creative_NRG. Somehow I doubt certain companies would even care what copyright laws exist. What's a starving artist looking for a job going to do to fight it?

natobasso's picture
3953 pencils

Any written contract that clearly states if the applicant's are transferring their rights to their work would be more appropriate than the current situation. Personally, if an employer doesn't trust my work enough to see my style then they aren't worth working for in the first place.

An artists work is his/her own unless created under the employ of someone else. In that case, unless expressly forbidden they have the right to display those works in a portfolio, but not for personal profit. It's assumed that whatever the artist brings in is NOT the property of the company at which they are interviewing; be it the demo work you request of them or not, because that person is not yet employed by your company.

Starving artists don't need a company like yours to waste their time. I know I wouldn't stand for it. Nothing personal.

Also, have your higher ups check out www.nospec.com for more -- they are basically having applicants create spec work! Not good. Have them stop this interviewing practice immediately.

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Powerpoint is not a design application

natobasso's picture
3953 pencils

You're a designer too, but you've lost your ethical compass somewhere along the way. We are reacting to your company's lack of ethics. Hopefully you can see that what your company is doing is wrong.

There are other better jobs out there, believe me. Don't be afraid to take a stand by either speaking your mind or retiring to find a better work environment.

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Powerpoint is not a design application

wahit's picture
85 pencils

Word!

melange's picture
134 pencils

I could be wrong, but as i understood the discussion, this was purely hypothetical.

That being said, "hypothetically," if you were to use someone elses work without their approval prior, that would be stealing.

life is great; without it, you'd be dead.

Creative_NRG's picture
483 pencils

---------------------
[QUOTE: "Shawn"]
"Is there any type of contract that could be utilized by either employer OR DESIGNER"
[END QUOTE]
---------------------

Let me get this straight. You're asking for our opinion on drafting a contract to legally steal a designers work without paying them under the caveat of an interview process? If you showed such a letter to any self respecting designer they would slide it back, walk out of the interview and smear your company every change they got in the community.

A contract can be written for anything you choose but is that really the reputation you're after?

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[QUOTE: "Shawn"]
Hopefully you're right about the copyright Creative_NRG. Somehow I doubt certain companies would even care what copyright laws exist. What's a starving artist looking for a job going to do to fight it?
[END QUOTE]
---------------------

This statement is absolutely disgusting. I'm sure the world is loading with unethical business leaders with little regard for copyright law and intellectual property but it doesn't change the fact that such action is criminal.

P.S. > I noticed the ©2007 copyright on your website but totally disregarded it and took some of your illustrations for a new project I'm working on. It looks great and didn't cost me a thing. That SS logo is sorta cool as well. I think I'll snag that as well. Thanks! What are you going to do about it?

Copyright law is pretty straightforward.
http://www.uspto.gov/main/profiles/copyright.htm

ssarts's picture
51 pencils

QUIT TWISTING MY WORDS!

[QUOTE: "Creative_NRG"]
Let me get this straight. You're asking for our opinion on drafting a contract to legally steal a designers work without paying them under the caveat of an interview process?
[END QUOTE]

No, not at all. Let me get you straight... I'm asking your opinions on what kind of contract could be drafted to assure the artist that no matter what they show us during the interview process that it will remain theirs so they need not worry!

as melange said, this is all HYPOTHETICAL!!!!!!
Can we please try to have a discussion without accusing me of doing crap that I never have and never will do!

You're right NRG, that statement is disgusting, but it's unfortunately probably the truth. Not for my company, but I'm sure there's been some designers out there that have been raped of their ideas by others.

I'm not the bad guy here!

Creative_NRG's picture
483 pencils

Now we're finally clear on what you're talking about. You don't techically need a contract as the designer would be protected under copyright law on designs they submitted to you.

But I understand how providing a signed statement from the company could ease the mind of the designer during the interview process that they retain all legal rights to the work they present.

The tricky aspect would be if you decide to hire an artist whose design you'd like to use. Does the company then automatically acquire the rights because they become 'work for hire' or does the artist retain rights outside of employment?

Oh, the unethical bastards are EVERYWHERE and hammering them in the courts is extremely messy. If you talk with a patent and trademark lawyer most won't touch a copyright case unless you have filed the design with the U.S. Patent and Trademark office.

Thanks for clearing this up. and sorry for jumping off the handle. I've been burned in the past and it's a touchy subject.

natobasso's picture
3953 pencils

You say it's hypothetical and then in the next paragraph (of your original post) you describe your actual work situation. I think that's what's causing the confusion.

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Powerpoint is not a design application

ssarts's picture
51 pencils

I guess I can see the confusion to a certain degree, but I never said that me or the company I work for was using anyone's work. I had to defend myself not for fear of getting fired, but so that I could get my point accross.

We have very low turnover, so it's been a while since I've had to even think about hiring a creative. I realized that asking candidates to do some sort of example work could put them on the defensive, so I thought I'd get some input on the subject.

I guess my first post should have been something a little lighter. :)

natobasso's picture
3953 pencils

The title 'Hypothetical Situation' would have been better. :)

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Powerpoint is not a design application

ssarts's picture
51 pencils

I guess trying to play the devil's advocate kinda blew up in my face.

Creative_NRG's picture
483 pencils

I thought this entire discussion was 'hypothetical'.

ssarts's picture
51 pencils

I was trying to present a hypothetical situation by playing the devils advocate.
I got attacked instead of informed.

natobasso's picture
3953 pencils

Shawn, you have to admit your original post is confusing at best and insulting at worst to the artistic community. You have to expect some ire as a result since we designers deal with this situation, and variations thereof, all the time. Had you worded the entire post as 'hypothetical' rather than giving a real example from your own life you would have been much better off and received more objective answers.

Defending the situation as you have done 'hypothetically' and implicitly accepting it by not challenging it (fear of getting fired notwithstanding) doesn't endear you to this forum either.

That being said, you've raised an important point. Designers always have to contend with companies who don't understand copyright law and don't understand the creative process.

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Powerpoint is not a design application

ssarts's picture
51 pencils

The ENTIRE issue I put forth wasn't completely hypothetical. As others have pointed out, I gave specific examples of asking and being asked to do "Spec" work, so that can't really be hypothetical. The hypothetical part of my post is if an interviewer would hypothetically steal an interviewee's work. THEN what do artists do? How do artists defend their rights if the hypothetical situation of work being stolen were actually a threat? These questions have now been answered to some degree, but I thought I'd try to clear it up a bit.

I see now that most artists look down on doing any sort of spec work for a potential employer. Refusing to do spec work is a little hypocritical though. Couldn't almost ANY preparation that you do for a job interview be considered "spec" work? Do you send the same resume out to every position being applied for? Same cover letter? Same portfolio pieces? I doubt it. (unless you're applying for 100 jobs maybe)...

biwerw's picture
19 pencils

As a designer, I have heard of this happening and all I know is that it if it happened to me I would be extremely upset that my work was used without my knowledge or payment. As far as contracts go I would never sign anything saying someone could use my work, my work is my life and I wouldnt sign my life away. I wouldn't want to work for a company that presented me with the "option" anyways.

-=- www.williambiwer.com -=-

____________________________________
Graphic Designer - Multimedia Designer
-=- www.williambiwer.com -=-

natobasso's picture
3953 pencils

biwerw, you need to post this in 'critiques'. I have two for you: Why is the text blurry? Why do I have to click 4 or 5 times to get to your portfolio samples? Remember the '3-click' rule.

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Powerpoint is not a design application

biwerw's picture
19 pencils

I didnt mean to post a link to my site, I hit the submit and didnt get to make the changes until later. Thank you for the critique on the site anyways. Its a few years old and am now in the process of a complete redesign of the site.

Bill

-=- www.williambiwer.com -=-

____________________________________
Graphic Designer - Multimedia Designer
-=- www.williambiwer.com -=-

nofi's picture
2 pencils

I think it's bad practice to request a job candidate do a spec project (with the implication of getting a job offer) unless you pay them for their time. Then, you *might* have the right to use their work. Most beginning (and even some experienced) designers don't know that spec work devalues their time and abilities.

ssarts's picture
51 pencils

You make a very excellent point nofi. Thanks.

When I applied to the company years ago, I didn't even think about it like that. I was just excited to have a shot at designing toys like tom hanks in BIg. Your point makes perfect sense to me now that I have some experience under my belt.

Do you think it makes a difference if it is an entry-level position? Maybe students that are still in school could get credit for a spec project and have a piece to add to their portfolio... Not saying that I would require it of entry level candidates, but I sure wouldn't have minded if I was in their shoes.

You'd be surprised at how many cold-call resumes I get where they send me some idea for a re-design of an existing product or their own idea for a whole new product. Some of the more professional ones are actually looking for us to bring their product idea to market, but there are also a lot that are just seeking a job.

natobasso's picture
3953 pencils

Most companies have disclaimers stating they do not accept unsolicited submissions to avoid legal hassles that result from this.
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Powerpoint is not a design application

chriscoyier's picture
4 pencils

Even if there is no legal precident, anyone who stole an idea in this fashion should get a swift kick to the groin.

ssarts's picture
51 pencils

I agree whole heartedly.

Mintsauce's picture
1003 pencils

Wow, it's hot in here.

The alleged writer got hypothetically hung. Sorry for the buzz Shawn, obviously this is a sensitive area for us creative types.

All I can say is, artists need to be better educated about the business side of their work. "Know your rights!" or something like that.

By the way NRG, I dig your avatar, might just use it for a logo I have in mind. Boohahaha! Just kidding.

By the way, it seems since I am a unique creation by my parents they own the copyright to me. I'm not even my own person anymore!! AAGH!

The Construct Agency
Building Creative Brands for People

ssarts's picture
51 pencils

I'm glad my first post to this forum could spark such a discussion, even if it was nothing but a beating.

mercutiom's picture
23 pencils

If I could offer the potential employer a solution to this hypothetical issue. Have your interviewees design something for a product you have no connection with. Maybe something that you hate the current advertisement for, or something that you haven't seen in a long time. If you're anything like me, you have already thought up some possible alternatives for the current campaign that would better speak to the audience. This would allow you to see their skills and see if they're on the same page as yourself.
______________________

Life's too short to sleep.

ssarts's picture
51 pencils

Mercution, that's a pretty good idea. Pretty similar to anything that's in someone's portfolio really. Afterall, aren't you supposed to gear your portfolio pieces towards the job your seeking? In college I know personally I did many advertisements and logo re-designs for big corporations. The agency in charge of the company's identity never asked me to redo the logos, but as a student, you've got to have something to work on to build your portfolio.

Thanks for the suggestion.

spigot's picture
190 pencils

A good portfolio should show a potential employer all they need to know.

~

synnestro's picture
29 pencils

Although, I can see that everyone here rightly agrees that when a designer takes along some samples to an interview they remain his, are under copyright, etc.

However, I'm sure some of us can also tell about someone who who took their work to an interview, didn't get the job, and found something strikingly similar to their work being used at a later date.

It is horrible, it is illegal, it is copyright infringement..
..But it does also happen, and it I would imagine it mainly happens to people with little experience, people just starting out, people not able to do much about it.

I'm just glad places like this exist, to get information and help.

dburney's picture
22 pencils

On my first job interview, they gave me some ad elements and specs and said "let's see what you can come up with in 30 minutes," - at the time it was no big deal. But looking back I personally think it was poor taste on the agencies part to do that. But I was hired and the ad was never used.

On the flip side, I don't think there's any justification for using said artwork, ever. If you want to test a candidate's computer skills, or layout/composition skills under pressure, fine, but make the layout a revision of either something existing (that won't require the new design), or something so old you'd never need to reuse it. This pretty much solves any usage issues.

Finkle's picture
1 pencil

there are a few options on each side:

As company:

a) if the design is outstanding, but the applicant isn't, offer something for the design.

b) provide prior terms in writing to be signed by all applicants that material submitted becomes property of company (you know, like art contests). Not exactly respectable, but at least you give the applicant fair warning that you're a leech.

As applicant:

a) refuse the monkey dance. don't do spec.

b) make a few comps and then delete the files (or take them with you) when interview is finished.

c) don't even care if they bite yer stuff. move on. respect that it could have been worse if you "got the job"...

natobasso's picture
3953 pencils

Companies: Don't do this ever. Applicants: Don't do this ever.

Example: Do plumbers or carpenters do 'spec' work?!

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Powerpoint is not a design application

Creative_NRG's picture
483 pencils

Generally speaking doing spec work doesn't pay but in the right context a company can certainly use 'Spec Design' to their advantage.

Two industries that come to mind are landscape design and newspapers.

I had my entire yard designed by a successful landscape firm that does the design for free and sells the plants to you to install. In the end I spent over $10,000 with them.

I also set up a spec ad program at the newspaper where I once worked for the sales staff to take with them on cold calls to show prospective clients how their ad could look in the paper. It was very successful and we got new business in over 90% of the cases which accounted for over $850,000 of additional advertising in the first 12 months.

Note: I did this after a review in which the boss told me (Production and Prepress Manager) I wasn't entitled to a bonus because I wasn't directly responsible for bringing in revenue. A week later I met with the creative department and we restructured the department to set aside time for a new spec ad initiative. I only used my best designers and we even sent them out with the sales rep on calls to show the designs. Local business absolutely loved it and the artist heard first hand what the customer wanted in the revisions as the signed the contract.

Needless to say, it was a huge hit and the sales staff that took advantage of it sky rocketed sales and pulled in huge commission checks. The beauty of it all was that it wasn't officially announced to the general manager and he had no idea what we were doing.

Imagine the look on his face when I walked into his office for my next performance review with a 12 inch stack of spec ad tracking sheets and set those on his desk along with the accounting on new ad sales because of that work.

He asked, "What's this?" I just smiled and said "That is a sample of the revenue we don't bring into the company over the last 12 month." Then I told him exactly what we had done. He said he'd pull some strings but I never got the bonus.

A week later he calls me into his office to tell me he's talked with the sales manager and they've decided the best designer is moving full time into the sales department to do nothing but spec ads.

natobasso's picture
3953 pencils

True, and point well taken from a sales perspective, but we're comparing apples to oranges. (I applaud your initiative!)

The work wasn't spec because your 'top designers' got paid either hourly or on salary for doing the ads for your sales presentations. You can see the difference here, yes?

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Powerpoint is not a design application

Creative_NRG's picture
483 pencils

I understand what you're saying from the designers perspective but the business invested money into a design without being soliciated and without the promise of ever making a penny.

spec - in hope of success but without any specific commission or instruction.

Don't focus on employees and what they do. Take a giant step back and see the entire forest instead of just the trees. Businesses do spec work all the time in hopes of selling their work. [Spec Home, Spec Ad] You're missing my overall point that spec work can be extremely profitable with the right approach.

It's my guess not many freelance designers even consider this as a way to grow sales. [With customers they've already done business and have a good relationship] They've always been conditioned to view all spec work as pure evil.

I'll give you a real life example of why it's not. I just did a spec design yesterday for a customer I've worked with for over 5 years and who has been talking about creating a website for the last 24 months. He's busy and never gets around to carving out the time to give me the content, design brief and commitment. I know his business well and had some time so I jumped in and did a rather quick design concept for his website. [Just something to spark his interest] I fired it off and went on with my day. The reactuib was typical from my experience. He and his partner called me all excited and appreciative I took the time to do the design and wanted to schedule a meeting to discuss getting the project off the ground.

I invested an hour of time in hopes of landing a multi thousand dollar project. To me that was a good use of some down time. It was done as a catalyst for conversion and showed my interest in the success of his business. From my experience people respond well to this approach whether they buy immediately or not.

What do you suppose would of happened had I taken the rigid 'NO SPEC' stance like so many others?

natobasso's picture
3953 pencils

This post isn't about taking a step back, it's about designers doing spec work. What you're talking about is a wonderful, but entirely different, post and point altogether.

You wouldn't take a no spec stance because, like I said, you were NOT doing spec work at your company. YOU WERE GETTING PAID.

You see, spec work brings down the industry in general because it gives employers and clients the mistaken impression that our time is not valuable. Is spec work categorically wrong? Not necessarily. But does it feel wrong when you spend many unpaid hours to no avail? Definitely. Does it seem okay with a successful result? Maybe.

Your perspective is colored by the fact that many of your spec assignments, those that were that by definition anyway, turned out well. I still feel it's not okay at all to make a prospective employee do spec work and then use it without any compensation. I think it's also wrong to do it whether there's no compensation at all for the reasons I've already stated.
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Powerpoint is not a design application

jozefk's picture
251 pencils

is so long already :-D

KNOPPIX.net
FROM ZERO TO LINUX IN 5 MINUTES

ssarts's picture
51 pencils

I've stumbled upon something that's almost exactly what I was after from the start of this whole ordeal. I wasn't even looking at the time. Just checking out some flash sites... Anyway, check this out:

http://www.thinkswedish.com/#ContentHolder:feed=jobs

They have some applicants do "tests" including logo, icon, and homepage designs. In their downloadable test literature, they have a disclaimer which should offer the applicant a little comfort. That sort of disclaimer is what I was after.

natobasso's picture
3953 pencils

Groan.

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Powerpoint is not a design application

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