The trend in the sign world these days is to do design work for free. A typical sign shop now will spend time doing sign drawings on speculation with no guarantee of getting the job. This is a relatively new development and is not a good practice in my opinion. But since so many do it, others are afraid not to. Many customers have come to expect it. And now the sign industry has a chronic problem not being compensated for design time.
Getting deposits
Would any of us take an order for lighted signs without some money up front? We may have the funds to buy the materials in advance but, knowing there is a risk, most of us require the client to make a commitment in the form of a deposit. That way we don't bear the entire risk. And the deposit
discourages the customer from continuing to shop for the signs after giving us a go-ahead.
How many of us would letter a truck without a deposit? If it's for a regular customer we may do it. Or, even for a new customer we may do it but we ask for payment when they come to pick it up. If you have the keys to the truck in your pocket you have some leverage, even if you didn't get a deposit.
Should we design logos without a deposit?
If we are doing a job that involves design work only, then once the design is completed the
job is finished. If we have done the job without a deposit, we have done all the work, in advance, without compensation. Now we are at the mercy of the client. And once the work is in the client's possession, there can be problems collecting.
How much better to get money up front before design work begins,
especially if creating the design is all the job consists of, which is sometimes the case when it comes to logo design. I don't know any design agencies in my area that would even begin a logo design without an agreed upon design brief, a contract, and a deposit. But we sign people are willing to do this. It is as if we don't value our time or consider ourselves professionals. A lady at a large design firm here in Kansas City was very blunt with me one time on the phone. She said, "You sign people are idiots. If you want to work for free, go ahead. Knock yourself out." It stung to hear her say that, and with such tactlessness. But to some extent, we have created our own problem.
For an agency, logo design may be a significant part of the work they do.
Design is their product, whether it's used on signs or in print or on the web or anything else. By contrast, we sign people view
signs as our product, and at times treat the design work as peripheral or even trivial. And this sometimes gets us in trouble.
I know there is intense pressure these days in the sign business. There seems to be less money to be made than ever before, and there is always somebody who will do the work cheaper.
I have a lot of sympathy for someone trying to break into the business and make a go of it.
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Are logos protected by copyright?
It's true that copyright protection is automatic, but often the design of a logo does not qualify for copyright protection. Many logos consist of merely stylized lettering and/or simple geometric shapes, which do not qualify. A logo must meet the government's requirements of "sufficient authorship" for it to receive copyright protection. If a logo does not qualify, an application for registration will be rejected, and you can't sue for copyright infringement without registering the copyright first. Some examples of well-known logo designs that were rejected for copyright registration: Subway (2013), Best Western (2006), Geek Squad (2012).
This doesn't mean you can't take someone to court for nonpayment, though. If a plumber fixes your drain he can take you to court to get paid. I have used small claims court to get paid for sign jobs. I have done this with and without the help of a lawyer. It is a pain in the neck to do and sometimes is not worth it. But if someone hires you to do work, even if the contract is verbal, you have the right to be paid, whether it's for artwork or plumbing. Of course, it is not an intellectual property issue.
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Trademark vs Copyright
Trademark protection is different from copyright protection. Logos that identify the source of products or services usually receive protection from trademark law rather than copyright law. It is possible for a logo to have copyright protection in addition to trademark protection, but trademark protection may provide all that's needed for a business to protect a logo.
What Does Copyright Protect? (FAQ) | U.S. Copyright Office
Here are some differences between the two forms of protection.
Copyright protection in the US begins automatically when a "work of authorship" is created in "fixed form." Copyright is owned by the original "author" for his or her lifetime plus 70 years. If a corporation owns the copyright, it's life is a flat 120 years. Copyright protection does not need to be maintained to remain in force. Many forms of authorship can be protected by copyright.
Trademark protection derives from using a mark in commerce.
For example, if I decide to build boats I may call them Bradcraft boats. The name Bradcraft identifies the boats I sell in the marketplace. It is a trademark. Trademark law prevents other boat builders from using that name for their boats. Further, I may decide to register the trademark with the US Patent & Trademark Office, since I may have in mind growing my market beyond my local area. I may also decide that I need a nice logo for Bradcraft boats, so I hire a designer to produce one. After the logo is designed I may want to register the logo design as a trademark, too. This registration for the Bradcraft logo design would be a separate registration from the one for the just the name Bradcraft. Many companies register both the name of a product as a trademark (this called a simple character mark) and the design of the mark as a trademark. The two registrations together give a greater measure of protection.
Or I may decide not to register the design of the logo, because my registration of the name Bradcraft protects the name in any form, any color, any typestyle, etc., anyway. If I register the design of the logo, then I'll need to do it again if I change the logo design, and registration with the USPAT is neither quick nor cheap. I can always register the design later once I'm sure the design is what I want.
As long as I continue to use the Bradcraft mark in commerce, trademark protection continues, though there are other periodic filing requirements. The rule is that I will not lose it if I use it. Nonuse of a trademark for three years can be evidence of abandonment.
Now, what if I didn't pay the artist who designed my Bradcraft mark? Can the artist sue me for copyright infringement? Well, if the logo doesn't qualify for copyright protection in the first place, how could I be sued for copyright infringement?
What about trademark infringement? Could the unpaid artist sue me for that? How could that make sense if the artist doesn't really own trademark rights to the design? Remember, trademark ownership derives from using the mark in commerce for goods or services.
Should the artist just sue me for nonpayment of the design work?
Or, if the artist sells the design to another company can I sue the other company for trademark infringement since I am already using the mark as a trademark for my boats even though I didn't pay the artist anything?
I think these are good questions to ask a lawyer.
