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Help me, please! I'm not getting payed!


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#1 graphicsgirl

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Posted 10 October 2004 - 03:04 PM

I am a graphic designer who made the terrible mistake of doing work for a friend of a friend. Everything needed to be done last minute for the owner of this new business. What started out as a logo turned into a store name design plus an original mascot. The agreed fee for everything was $500 which is way under what I'd normally charge to begin with. No contracts have even been signed yet, and this has all been a terribly painful learning process for me.

What my big concern is regards this jerk's rights to my work. He has several jpeg's that were sent to him via email because we were working on it mainly through email. I would modify the mascot, and then he would send me change after change, and then later more changes from his mother and sister. It was getting ridiculous to the point that I just wanted to be rid of him. What began as a small logo became a nightmare. He is now wanting to back out of the deal and go somewhere else because I told him that he cannot go on forever changing things four to five times daily depending on what mommy and sis decide. It has been totally unprofessional - on my side, too, being that I have no signed contract for this deal.

Is this guy going to be able to take the jpegs he already has and use them even without my permission? Do I have any rights to protect my work? I've been paid nothing, I've put a great deal of time into this project, and now I run the risk of having my ideas stolen with no pay at all. Can he do this? The only thing I've done is put together a sheet with all my works for him and gotten it notarized. It states on the page that all creative rights belong to me. I am sorry to make this so long, but I know that all creative individuals cherish their work and hate to have it taken from them unfairly. Can someone please help me? I need to know if there is any way that I can stop him from using my ideas and work with no pay. Thank you.

#2 Ruud

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Posted 10 October 2004 - 04:00 PM

Hi graphicsgirl,

First let me take a moment to welcome you to the forum. I'm sorry we meet within the context of such an obnoxious situation but hopefully your stay here, however long, will eliviate some of the stress :-)

I'm by no means a lawyer nor scholared in any specific aspect of the law, so by no means take what I say as gospel or an informed opinion. It's more a description of what I would do were I in your shoes right now.

Given the outstanding step of having gotten your work notarized I would proceed to severe the working relationship with this client while mentioning both pay and legal restrictions in the same go.

Something along the lines of;

Please be adviced that awaiting full payment of the agreed amount of US $500 all rights to the creative works remain with <insert name>, as witnessed by a deposited and notarized copy of said works.


Don't mention not expecting payment. Send a regular reminder, followed by 2 or 3 months with a payment schedule offer ("... in case of financial duress we're willing to offer you a payment schedule of 5 monthly installments of US $100..." etc.).

#3 rcjordan

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Posted 10 October 2004 - 04:21 PM

>Given the outstanding step of having gotten your work notarized

Agreed. That's an excellent precaution.

Send a copy to him -fedex or certified mail, return receipt requested- along with Ruud's suggested text. You might add that it's a usual business practice to get 50% upfront and ask for that. Odds are you're never going to get a dime but you might keep him from using your work.

#4 Ransak

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Posted 10 October 2004 - 04:25 PM

Hi Graphicsgirl, welcome to Cre8asite

Your situation is frustrating for sure. All that work put in with no return, plus the fact that this person is 'getting over' on you if you do nothing and walk away - Which is what my advise would be.

It might be difficult to do, everyone wants vindication when they have been wronged but consider this:

$500 is a small price to pay for a lesson learned. Don't ever work without a contract. Don't ever underestimate your value. Even for the most friendly of jobs, always work out a contract that states payment terms, outlines what your deliverables are (the design and files), and what creative rights you are giving up or holding on to.

Also, if you want to give someone a price break, a good idea is to invoice them for the full amount and indicate on the invoice a reduced or discount rate. This way the client will understand your true value and hopefully appreciate the lower fee you are giving.

That said, your work is your work. I belive that you retain copyright for commissioned work by default - I am not a lawyer however. If trying to decide if going after this payment is worth it, you have to try to put a value on the time, effort and stress you will have to spend getting your payment

Again, I am not a lawyer, so if you really do want to attempt to make a claim, consulting with a lawyer is your best option. Sometimes a letter from a lawyer is enough to motivate people into action.

It's easy for me to say let it go, I know. I am not invested in it as you are. I have in the past tried to collect on work that I did not have a contract for and as someone who has been through it before, I can tell you I should have let it go and focused instead on getting more work.

Some resources on Contracts just FYI:

About.com has a few good resources on graphic design contracts with some sample copy and good primers. It is worth a look.

The Graphic Artists Guild's Contract Page also has some great resources and overviews on corporate contracts.

The Graphic Artists Guild publishes a Pricing and Ethical Guidelines Handbook each year that has sample contracts, salary ranges and other valuable material and is fantastic for any graphic designer.

Good Luck on whatever route you decide on.

Frank V.

*edited for spelling*

#5 Adrian

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Posted 10 October 2004 - 04:26 PM

Again, not a lawyer or anything, but there's a few things that seem to put you in a better position.

As far as I'm aware, the rights to the work are deffinately still yours to control. So in that case, he can't take the work you've already done and use it in any way without your permission.

Also, though you may not have a signed contract, do you have some kind of evidence of the payment terms? An email or something?
Anything along those lines can strengthen your position if you don't get anywhere with the advice Ruud gives above.

It might also be worth letting him know what your usual hourly rate is, and how many hours you've put into the project. I'm guessing at that kind of rate, it would be a lot more than $500 with all his requested changes?
Though on 2nd thought, that may not be such a brilliant idea, but it's likely the kind of thing I'd say, heh.

#6 Tim

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Posted 10 October 2004 - 05:21 PM

Welcome graphicsgirl.

I don't have any more advice than what's already been given on the legal side of things, but I wanted to say that I hear you on the never-ending changes. I had a big problem with that once when a client didn't describe what they wanted properly at the inital quote, and I failed to ask more questions, and then they thought of new changes throughout the development process - and they were shocked when I said I need to charge them more. In the end, I lost the client - I got the money I'd quoted plus a bit more, but not as much as I would have liked for the work I did.

I guess the bottom line on that is make sure everything is worked out thoroughly at the beginning - which you've learnt from this. Spend a good amount of time talking with your client and telling them what is included in the price they're paying. Put it all in writing, and get both parties to sign it. Tell them you'll charge them 50% of the total amount before you do any work for them.

I've generally found that most clients are a pleasure to work with, and I rarely have problems. But occasionly there's the odd one out, who either insists on you doing what they want even if you can't do it or it's not a good idea, or just sends through 10 changes a day in the ignorance that it's paid for in the quote.

So, I totally understand your situation, as I'm sure many more do too - you're not the only one! I hope that whatever route you choose to take, it works for you and that you get your work paid for.

- Tim

#7 graphicsgirl

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Posted 10 October 2004 - 11:45 PM

Thanks so much to everyone who replied to my dilemma. All of your advice helped a great deal. I wasn't sure how to handle this one, but I'll definitely be prepared in the future. Thanks again! This is a fantastic forum, and I look forward to learning a lot and hopefully helping others out, too.

#8 Ruud

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Posted 11 October 2004 - 12:04 AM

Hey, that's great to hear! As you can see from our avatars, many of us are graphically challenged :-)

Seriously though, happy to hear this helps all helps a bit, prepares you for the future and encourages you to come back to help out others.

Ain't life a great place :-)

#9 sanity

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Posted 12 October 2004 - 05:00 PM

Welcome to Cre8 graphicsgirl :wave:

Pretty much everything's been covered already but I thought I'd throw in my 2c.

As unfortunate as the ways it's come about it sounds like you've learnt a very valuable lesson and perhaps over time will actually realise it may have been a good thing to have happen.

A couple of things to keep in mind for the future:

1. Never, ever start a job without a contract. If they've left things to the last minute that's their problem not yours. Never let things like a rush job stop your usual process.

2. Estimates are often hard enough to come up with in the first place. And we've all had the client who wants endless revisions. I always allow some extra time in my estimates to do at least one revision. After that I tell them additional revisions will be billed as extra. You'll notice I said "estimate" and not "quote". I never call them quotes - they're not they are an estimate of the time it will take to complete a job. I also add the following copy to every estimate:

These figures are an estimate, not a quote. They are based on information provided, and may be inappropriate if additional information is forthcoming, or job specifications change. It is valid for 30 days.


3. Getting an upfront payment is important however I recently moved away from the 50% up front. I now invoice 25% up front and then invoice the client on a fortnightly basis. This way if the job takes longer than expected I'm still bringing in money (cash flow is important) Additionally if they keep adding extra tasks they get billed for them. Alternatively if the job doesn't take as much time as expected they're invoiced less. I find it works well for my me and the client - as we both always know where we're at.

4. Finally be prepared to walk away. Some jobs aren't worth it. :roll:

#10 nomadesign

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Posted 12 October 2004 - 05:17 PM

Hi graphicsgirl:
I would keep those e-mails that you sent back and fore...if you tend to seek legal matter. This is proof that you did work on a job for him.

Check to see if he is with the B&B if so report him.

On the flip side I learned a lesson my self one day. To make a short story I never asked for a down. I now want a down payment and full payment when the project is over. Make a contract no matter how small it is...

-damon
PS I wish you luck in getting the money that you earned...
Please tell us what the outcome is...

#11 sanity

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Posted 12 October 2004 - 07:00 PM

Another thought - you said you provided the art in jpeg format, what quality did you set it to? At least if you provide mock-ups in a low resolution if they choose not to pay you they are limited in their uses of the work.

Have in your contract that high resolutions, black and white versions etc will be provided on full payment.

#12 suijuris

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Posted 16 October 2004 - 11:30 PM

Just a BASIC thing about contracts for services.

To constitute a contract you need
a) A valuable consideration paid for
B) services or goods
c) over a period of time.

[If you do (B) I'll give you (a) at ©]

[If you draw me a logo I'll pay you $500 upon completion]

There's been no payment... there is no completed contract.
If he wishes to hold or use your work, to prove there
was a verbal contract, let him produce a bill of sale
or a canceled check.
He can't hold what he hasn't paid or 'contracted' for.
Even if there was a verbal contract, he's breached it.

You might want to read through the U.C.C. for
more insight about how contracting works.


P.S. Get it in writting first, then I always give a sheet
or two of thumbnails that they can pick and choose and
mix and match until they have what they want.
THEN they get two revisions. One major, one minor.
Then they pay for any following that. If they're idiots and
can't communicate what they want after getting a whole
menu of ideas to choose from, that's their problem.

-------------
EDIT:
I'm sure there's an equivalent to
the Uniform Commercial Code in Australia

#13 eron19

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Posted 17 October 2004 - 07:30 PM

500? mm...i would just take it as a lesson learned. simple.
if not, get a lawyer and sue him.

#14 suijuris

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Posted 17 October 2004 - 07:59 PM

Forget the lawyer.
Sue him yourself in small claims court.

Go to your local courthouse there in Cleveland
and ask the nice lady at the front desk where to
go to file a small claims lawsuit.

Then ask the people there for the small claims
packet and see if anyone will help you run
through how to use it.

I've done several and usually if you just show
up for court, you'll win.

You'll get a judgment against him.

If he doesn't pay find his income source
and garnish it. (you can also do that yourself)

If he still doesn't pay, put a mechanics lien
against something he owns. (You don't have to
be a mechanic to levy a mechanics lien. It's just
called that.)

If he sells whatever it is, he'll have to pay you.

If you like you can also offer to lift the lien if he'll pay up.

That's when most people I've delt with, break-down and pay.

It sounds like a lot of things to do, and I guess the first
time through it, it seems like it. ...But once you've done it,
and have copies of all the paperwork on hand to use again,
it will become rote and hardly any trouble at all. Except for
the court appearance you'll have to make, it can all be done
with a few minutes of paper or phone work.


http://www.ag.state....on/smclaims.htm


.

#15 Ransak

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Posted 17 October 2004 - 10:23 PM

Hi Sulijuris, welcome to Cre8asite.

You make an excellent suggestion about small claims court. With the documentation that grapicsgirl does have I bet she has a good shot in small claims court.

Frank V.

#16 kensplace

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Posted 17 October 2004 - 11:21 PM

Doing work for friends, or friends of friends is often fraught with danger, thats not to say it should not be done, but expect trouble :)

Why not try having a word with your friend, and tell him the grief his friend is causing you - any good friend would have a word in his mates ear, and sort the problem out for you.

What could happen? Your friend may talk to his friend and find out he is a total b*s*r*d and stop asking mates to do favours for him, or it gets sorted out cleanly, simply and without recourse to any legal matters.

Off course you could lose your friend, thats allways a risk, but is it really a friend if that happens? Some friends you are better of without!
just a thought.

#17 sanity

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Posted 18 October 2004 - 01:22 AM

Good points Ken. It's always worth trying to talk through issues before resorting to more drastic measures!

#18 suijuris

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Posted 18 October 2004 - 12:06 PM

Ransak,

She has almost a sure shot.

Most people don't even have the guts to
show up to contest it.
That's an automatic decision for her.

Once she has a lawful judgment in her hand
getting a lien or garnishment is a breeze.

She can run rampant over this guy and
the courts won't bat an eye at her.

#19 nomadesign

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Posted 20 October 2004 - 02:31 PM

I wish you had a contract with them, and then you could have filed a mechanical lien against them...

-damon

#20 suijuris

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Posted 20 October 2004 - 03:43 PM

When she goes to court and gets her judgment againt him,
she can still do a lien.

#21 Pete

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Posted 04 November 2004 - 11:49 AM

Just a note about copyright:

You own the copyright. If he uses the images and there is a dispute over his right to use them (which I imagine there will be), the old fashioned cheap and cheerful way of copyrighting a work was to deposit it before letting anyone else have a copy in a dated envelope in a bank vault, or even cheaper send it to yourself in a sealed registered envelope. When the seal is broken in court, unless the other party has the same thing with an earlier date, you have proven ownership.

With a computer graphics file, the file properties may even be all the proof you need, e.g, your original file has a date created. Only send out files modified or created on a later date, although it may be possible to hack the file properties: it would not deter a professional copyright thief but would make the average opportunist (like this one may become) think twice, especially in conjunction with the sort of letter previously suggested.

On a different tack, you said that this was a friend of a friend. Is it not possible to ask the friend to mediate a compromise deal/settlement?

You are the victim of an amateur, maybe the friend could tactfully point out that professional freelance artists need to eat as well.

#22 xelA

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Posted 05 November 2004 - 12:11 PM

Honestly, I don't believe that anyone goes to court over 500 dollars in such a scenario. Although you could go to small claims court and fight it out...

From what I understand, your problem is that you haven't been paid the agreed amount (not to mention even being close to compensated for your time). However, he obviously can't use your drafts because it's like a product at a store you can look at it but you can't carry it out and use it without paying for it. If he does, you can beat the hell out of him in any court.

However, he can take your concepts and take them to another designer and further develop them without you doing much about it. This is the exact reason design companies take 50% upfront so that they don't give away creative concepts for free. It was a stupid mistake but we've all made it. I've actually had similar things happen to me several times. Where I get caught up in making a million little tweaks based on what the guys' babysitter thinks type stuff.

Personally, I would just eat it on this job and move the hell on. Why? Well because at 150/hour I know that I have about three hours of work paid for by this dude... obviously you've already invested several working days and it would take you several more to complete the project. This is where I would cut my losses and move the hell on. Your time is money and this dude is wasting a hell of a lot of it.

Having said that, one of the best things you should learn from this experience is that THIS IS ALL YOUR FAULT not his. People can be jerks and asses but as a professional dealing with clients it is up to you to control the project and the client. Now I'm not talking beat the dude with a whip or anything but you should lead the client along a well established design path. Think of it just like sales and the term "controlling the conversation". You should be able to say certain things and guide the client into answers. Keep in mind at work we're designers and not artists we're not expressing ourselves we're merely revealing to the client what they already know but couldn't draw or communicate themselves.

This is easier said than done because its very easy to lose track while working with "friends".
I guess that's why they say "if you want to lose a friend either loan them money or do business with them".

#23 DianeV

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Posted 05 November 2004 - 01:14 PM

I agree with Alex. Many have had to learn this lesson, but anyone should only have to learn this lesson once.

I don't agree that "friends of friends" make bad clients, per se. Word of mouth is a powerful marketing mechanism. But, as always, it's up to you to determine whether *you* want to take on any particular client.

We always interview potential clients to determine what the project encompasses, what they may be missing and whether *we* want the project, and we always require a substantial deposit prior to beginning any project. Among other things, this has the effect of weeding out people who are not really interested, or who don't grasp the value of marketing their own companies/services/products, or who cannot get past the "it should only take minutes" concept to convert their ideas into a fully-functioning website, or who simply cannot afford us.

I completely agree with Alex re controlling the project. The fact is that most people are not familiar with website development, and thus it's up to you to help walk them through it.

That said -- and I don't know where you're located -- where there is even a verbal agreement upon which you've delivered but the other party hasn't, it's unethical, and possibly unlawful, for the other party to use the results of your work without the agreed-upon compensation.

#24 MorgZ

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Posted 12 November 2004 - 08:05 AM

sounds like an irritating predicament.

Hope it works out ok for you.

Thanks for all the really useful advice, I have certainly learnt a few things from reading these replies.

#25 kabwebs

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Posted 12 November 2004 - 02:57 PM

You can always go for fame too, and call Judge Judy! lol As a certified webmaster and legal copyright holder, I can tell you that legally you are covered with the notarized copy of your work. However as stated earlier your chances of gaining anything from hiring a lawyer are slim to none. Therefore small claims court would be your best shot at trying to reclaim any monies owed to you. You may also visit the US Copyright Office for more information on these matters and their professional opinion on how to deal with such situations.

http://www.copyright.gov/

#26 ukdaz

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Posted 04 December 2004 - 12:42 PM

I still get them clients a bit like that even now... for example recently:

A client had agreed to have me carry out a link strategy to gain inbound links once his web site was redesigned . Upon completion my client then advises he does not wish me to do this but "Can you keep an eye on the statistics and keep us informed anyway?"

In my early days I would have done so in the hope they would come round and then pay me for my time. They never do. Some business people think if they can get it for free they will try.

I dumped this particular client. I advised I do not work for free, if he wants my web services he will have to pay in advance and that due to his broken agreement he will have to find another web person.

Funny but 2 days later a phone call from the client to apologise and say the cheque is in the post and can I start.

Clients are important but if they feel they can have you over a barrel you should let them go (and yes its very hard as their money is useful).

I soon got a reputation not to be messed around in this manner with and this has helped attract a better class of client who understands the value I bring. I still get people "try it on" but I now have most of the answers to duck and dive when I need to... I get it wrong occasionally but thats the "fun" of business...

Daz



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