Chapter 13. Legalities, Integrity, and Morality
The design profession can be a bit of a jungle when it comes to ethical considerations. There’s no governing body to lay down a set of rules or guidelines that we’re required to follow. No professional accreditation is needed before we can call ourselves designers.
Other professions, such as architecture, law, or medicine, require those who practice to pass exams, but it seems fashionable for anyone to call him- or herself a designer, regardless of their day job. “I designed a flyer for my church,” “I designed the layout for my living room,” “I designed some T-shirts for my new clothing line,” and more can be heard from people who’ve no idea about kerning or CMYK.
Just because I can fix a leaky faucet doesn’t mean I get to call myself a plumber.
Don’t get me wrong. Everyone has a capacity to design, the opportunity to learn and become exceptional. But the wide difference in numbers between those who actually do strive to learn more and those who think formal education isn’t necessary means there’s a common misconception among lesser clients that anyone with a computer can design. The good part is the people we choose to work with aren’t those lesser clients. We (should) only work with those who understand the value in our profession and who know the importance of hiring the right designer (you). (It’s easy to spot clients you don’t want to work with, and we’ll identify those red flags in the next chapter.)
Regardless of the lack of predefined “rules,” we owe it to ourselves, to our clients, and to the success of our business to understand the critical issues of ethics in graphic design.
Legalities
Legal issues can be complex, and they are changing all of the time, but you do need to pay close attention to them.
In her book, Ethics: A Graphic Designer’s Field Guide (self-published, 2010), New York-based designer and teacher Eileen MacAvery Kane cites traditional copyright laws, which grant exclusive rights of ownership for 50 years, offering protection to copyright owners. She also notes that Larry Lessig, copyright lawyer and chair of Creative Commons (a nonprofit corporation offering ways to grant copyright permissions for creative work that make it easier for people to share or build upon the work of others) has challenged these laws, contending that they’re antiquated and out of sync with contemporary culture. Lessig and other Creative Commons advocates feel that current copyright law actually creates a culture of lawbreakers with a complete disregard for the law and the consequences that might ensue.
How might this apply to you and your business? Take your blog as an example. Of course, in a visual business, it’s important to use images to generate interest. For years, rightly or wrongly, I published images belonging to others without first asking the creators for permission. I did so because one of the things I like to do is share design work I find inspiring and worth discussion. Granted, I always made sure to give credit to the owner in the form of a byline and a link to his/her website, but I was publishing without permission, and according to those laws that Lessig deems antiquated, I was doing so illegally.
Was I punished for my actions? Throughout the years, only once was I asked to remove an image (the aggressively protected Formula 1 logo, even though I was highlighting it as good design). It’s much more likely that when someone sees his or her photo or illustration published on another website that they are happy for the promotion and link. This can be considered “fair use” under the Copyright Act of 1976, but distinction between fair use and infringement is not easy to define.
Generally, the safest course of action is to always get permission from the copyright owner before using copyrighted material.
Another instance where legalities play an important role is in font licensing. When so many fonts are available for free, a lot of clients believe it’s okay for designers to readily send them any font file, including those created by professional typographers and font foundries. In order to legally supply a file to your clients, you must have a multi-user license and explain to your client the installation restrictions—that is, the file can’t be installed on a limitless number of computers. It’s your job to either dissolve the cost of the multi-user license into your overall project fee or to explain the restrictions to your clients, pointing them toward the website where they can purchase a license themselves.
In addition, stay vigilant when a printer asks you to send a font file, because unless you have a license for multiple computers, or unless the font license allows for printer distribution, it’s illegal to email that file, just as it’s illegal to share a piece of computer software.
Keep in mind that just because a font can be freely downloaded, it doesn’t mean you can automatically use it in your client projects. Free fonts have licenses, too, and they might contain a restriction that states they can only be used for personal or educational projects (i.e., not in for-profit work), so be sure to read the accompanying license in order to avoid paying damages. Contact the vendor if you have questions.
Then there’s plagiarism in graphic design, the unauthorized use or close imitation of existing artwork and the representation of the artwork as one’s own original creation. Eileen MacAvery Kane relates one of the most well-known cases, when artist Shepard Fairey used a photograph of Barack Obama and stylized it for a range of posters. The photograph belonged to the Associated Press (AP), who wanted compensation from Fairey. But he sued for a declaratory judgment that the poster was fair use of the photograph. The two parties settled out of court in 2011, before in 2012 Fairey pleaded guilty to destroying and fabricating documents during the legal proceedings.
American Institute of Graphic Arts (AIGA) medalist Ellen Lupton recalls when she was asked to be an expert witness in the case by the lawyer representing the Associated Press.
“This was a case of artist vs. artist, and I could really see both sides of the story. On the one hand, shouldn’t any picture of Obama be considered part of the culture, fair game? On the other hand, didn’t the photographer work hard to get that particular shot? I said no to the request. Too much moral ambiguity. Later, it came out that Fairey had lied about which picture he used. The morals become far less ambiguous, and Fairey ended up embarrassing the free-culture side of the argument. Not cool.”
When your blog gains a decent level of exposure online, you’re sure to come across unscrupulous idiots who scrape your blog’s content in its entirety, republishing it on their own websites, where they’ve added some Google AdSense (an ad-serving application where the publisher earns money per click) or another form of advertising in the hope of earning a few dollars from your hard work. In my own case, there are so many sites doing this with my content that it would take longer to chase them all down than it would to continue with doing my own work and creating more blog content. I put it down as “one of those things.” If you prefer to go after the fools, more power to you.
Integrity
Designers have a number of integrity-based decisions to make on a daily basis on topics such as doing spec work, digitally altering images, negotiating client contracts, and coming to terms with what our responsibilities are to our clients and colleagues.
Avoid spec work
Integrity is about adhering to your principles, and one of my main principles is to steer clear of spec work: work done for free, in the hope of receiving payment (volunteer work or pro bono design, as discussed in chapter 11, is a different matter). I think that because graphic design is a profession we love, many people with a need for our services think designers will happily work for free. I often receive emails asking for just that. Free work. Here’s an example of one such request:
“We’ve partnered with a top English DJ and producer to offer graphic designers the opportunity to participate in a worldwide project for which they can receive global recognition for their creativity.
“The project asks that graphic designers design the official logo for [the DJ] that he will use on all of his merchandise and marketing material worldwide during 2011. The selected designer will also receive $1,000 (USD) for their design.”
It prompted me to reply with a unique opportunity of my own hoping to highlight the inanity of the situation:
“Thanks for the kind offer.
“In return, I’m reaching back to let you know about a unique project opportunity for [the DJ].
“The project asks that [DJ] record and produce a new music track—one that mentions my name and my title as a graphic designer. I’ll play the track on my website to a worldwide audience, giving full credit. I’ll also pay $1,000.
“If I don’t like the track, or if I prefer one created by another DJ (I’m contacting thousands of others with the same unique opportunity), I won’t play it on my site. Nor will I pay the monetary prize.
“To participate, have [DJ] send the completed MP3 file to my email address.”
Imagining how spec work plays out in another profession often makes it seem like a very foolish request, and unsurprisingly, I never did get that MP3 (but do I keep receiving similar requests from other people).
Get it in writing
It’s imperative that client expectations are met throughout the course of a project. The most effective way to ensure this is by having a written agreement for every project. This agreement should describe the scope of the project, the time frame, and the costs. We’ll detail the terms and conditions you need to highlight in chapter 17.
Sometimes fulfilling the agreement can be painful. JP Jones of Oklahoma-based Paige1Media recalls when her then-newly formed business was working with its first official client. JP and her business partner were still learning the ropes of small business leadership and feeling their way through contracts and proposals. The client requested a quote on a bilingual design project, the pricing was accepted, and the two partners arrived on site to discuss the job. It didn’t take them long to realize that a huge mistake had been made. Through poor communication, the duo had misunderstood the client’s request and quoted the project on a set of totally different parameters.
“My business partner looked at me and I nodded my head slightly. He went on to offer to not only match the price we had quoted but to take full responsibility for the misunderstanding of the project. By taking the ethical high road and a hit on that one project, we not only gained the trust and loyalty of that client, but now, years later, they continue to be one of our strongest clients and have referred more than two dozen other clients to our firm over the years.
“We often wonder what would have happened if we had handled that project differently and had not risen to the occasion—taking the responsibility for our own learning curve in the client jungle. The money we didn’t make on that single project has been paid many times over—there is no price too high for showing that your firm stands behind its word—even when you make mistakes.”
Trust your gut
When Liza Lowinger and Spencer Bagley started Brooklyn-based Apartment One, they had a clear vision of working with clients who are “giving back” and “doing good” in big and small ways. “These are broad concepts that can be expressed through many different means,” Liza pointed out, “but of utmost importance to us is working with clients who approach their business with integrity.”
Years ago, Liza and Spencer were presented with the opportunity to redesign a website for a client specializing in private security training with the goal of enhancing their consumer appeal. At the time, Apartment One was a small, growing agency, and while this client and project didn’t align with the duo’s vision, the opportunity to work on a large-scale project with a big client was appealing. They also felt pressure to accept the project because an individual interested in purchasing their agency had referred the job.
“If we didn’t agree to the project, we risked alienating ourselves from someone who we saw as a central player in the future growth of our company.
“Spencer and I grappled with the decision. Our intuition, that inner voice of truth, was leading us to a clear place of no; however, the promise of financial reward and business security at an early point in our business made us question our decision. In the end, Spencer and I agreed to hold firm and remain true to our position. We passed on the opportunity, and as a result ended our relationship with the person who had referred us.
“A few months after we turned down the project, the client started appearing more frequently in the media and underwent much public scrutiny. The experience and subsequent outcome reaffirmed to always remain true to our core values and ‘trust our gut.’ This was an important lesson that continues to resonate and that we share with our clients in our work to support them in identifying and expressing their truth and uniqueness.”
You also have a responsibility to those with whom you collaborate, and to those you recommend to potential clients that you’re unable to help personally. The foundation of all successful design is solid relationships, whether that’s with your client and his/her team, with the illustrators, photographers, or copywriters you work alongside, or the designers you choose to pass leads on to (you can quickly burn bridges if you waste a designer’s time with poor referrals).
Morality
London-based designer Miles Newlyn chooses not to work with zoos or companies involved in warfare. Interaction designer Guy Moorhouse takes a similar stance against tobacco or gambling firms. I won’t design for politicians with agendas I don’t agree with.
These are all choices based on personal morals, and they’re rarely black and white because we all have our own standpoints, born from different life experiences.
It can also be difficult to know every last scrap of information about a client. And how much research can you afford to carry out before deciding to accept a project, because how long would it take to ensure that each and every client acts in accordance with our own morals?
One of my earliest clients in self-employment was an online company that compiled links to downloadable eBooks.
I think my naiveté showed in accepting the project, because after publicizing my design online, I came in for criticism from others who told me that links to their eBooks were offered through my client (links pointing to third-party websites distributing the PDFs for free without author permission). This may have been an isolated mistake made by my client, but if my research had been more thorough prior to accepting the job, would I have made a different decision? What if I had found out about the problem halfway through the project?
Italian illustrator and designer Andrea Austoni told me how a particular publishing house asked him to design the logo for its Bible Study iPhone app, and another wanted him to design the logo of its Children’s Bible comics app. Andrea is strongly against organized religion, especially its teaching to children, so he politely told both companies that he had to decline their offers.
These kinds of questions aren’t easy to answer sometimes. We all have bills to pay and families to support, so it can be a very personal decision about where we draw the line in our own interpretation of right and wrong.
If a newspaper firm or a book publisher approaches you with work, do you question your potential client on the toxicity of inks or the origins of the paper used before accepting the project? What about if IKEA gets in touch? In her book, Eileen MacAvery Kane commented on the furniture the company sells: “The unsubstantial wooden slabs and wobbly table tops are a marketing ploy—the furniture is not supposed to last—and consumers are comfortable with this. The argument that IKEA’s popularity is due to answering consumers’ needs is a shortsighted one. IKEA is not the answer; it’s a fix... The unsubstantial products age [when trends change] and break and the need for replacements emerge.” From a prestige standpoint, you might consider yourself a fool not to add IKEA to your portfolio when given the opportunity, but then again...
California-based designer and teacher Robyn Waxman says it well:
“My biggest ethical issue concerns whether I am brave enough or care enough to follow that trail of manufacturing to learn that the product or service I am about to promote is the very thing that undermines me and what I care about.”