Where our wild things are, Part 1
04 May 2010
This first part of a two-part series written by DK Holland for Communication Arts magazine discusses the varying approaches and opinions surrounding spec work the its related legal and ethical issues.
Graphic design ethics in the age of exacerbationDK Holland
This first part of a two-part series written by DK Holland for Communication Arts magazine discusses the varying approaches and opinions surrounding spec work the its related legal and ethical issues. Read part two.
Maybe I operate on the fly more than I realise. Maybe we all do. Yale psychology professor Paul Bloom suggests that there is no such thing as character (i.e., the consistent moral center we hope we have). It rings true when he says, "Although it might be hard to think about the person who will occupy your body tomorrow morning as someone other than you, it is not hard at all to think that way about the person who will occupy your body 20 years from now. This may be one reason why many young people are indifferent about saving for retirement; they feel as if they would be giving up their money to an elderly stranger." 
In the graphic design profession the joke has always been we never retire: You can't retire your persona. Now you can't afford to. And sadly, a lot of us have fallen out of love with design. What happened? Over the last two decades, a perfect storm of low economy/high technology have left practitioners compromised, at sea on a leaky boat.
The designer who thinks today, "If I give them the solution, they'll hire me," might, on a better day think, "I need to be paid before I do any work." Or in another situation, "Low-balling my fee will undercut the other designers bidding on this project and get me the assignment." But, wait a second, "Low-balling undervalues my work and besides, undercutting does not help the profession." Our all-too-human tendency to rationalise goes right to work when we're rattled, our brains fooled into thinking we are doing the necessary, expedient thing (often ignoring ethics, not to mention the law).
In fact, there is no 'Code of Ethics' promoted by AIGA, the premiere organisation for professional designers; instead an online document, the Statement of Professional Standards , outlines business practices and addresses some issues that are ethical in nature but excludes or skirts others. When asked, designers often have not read this document. Designer Ben Whitehouse of Whitehouse and Company, himself a young designer, observes, "Students with no professional experience are daunted by professionalism and they don't understand the importance of professional standards. It needs to be brought alive for them."
AIGA must be careful how it puts its disapproval of certain unprofessional practices in print. For instance, executive director Ric Grefé says, "AIGA was advised by the Federal Trade Commission (FTC) not to publish a spec work position in any statement that might be referred to, even indirectly, as an ethical standard that might elicit censure within the profession... or it might risk being cited for a restraint of trade through price fixing (i.e., making it unethical to work for nothing) for which we would have lost our 501.3.c status and possibly been subject to a regulatory action."  However, articles on AIGA's Web site detail the perils of spec work in depth and provide tools to combat the practice in a way that does not appear to be 'setting too many standards.' But spec work is rampant. Is the horse out of the barn? The irony is, of course, that it is only by maintaining high standards that any profession (and its individual practitioners) remains healthy.
Do the right thingWhile free falling into an economic abyss there is little time to ponder outcomes; we're more apt to take an expedient escape. Everyone is in the same boat: Manufacturers are being forced to reduce their costs by retailers, accept penalties if sales go bad. Publishers are struggling if they are still in business at all. Economic belt tightening is expected of everyone right on down the line - designers included. And doing the 'right thing' may seem difficult for just about everyone.
We are urged by AIGA and the Graphic Artists Guild not to work on speculation, not to pirate software programs or type fonts and to consider the implications of signing Work for Hire agreements. But how bad is it to do any of these things? Since no one discusses both sides openly, designers, who may well have 'sinned' themselves, just get hot under the collar when they hear someone else has broken the code of honor. Brad Weed at Microsoft, who was a designer/design manager until recently says its all too hush-hush. "People can't even debate these issues. People may have risen to the top by working on spec. Yet we give them medals." Weed suggests if designers could just relax and say, 'Here are the internal conflicts I have about this. Can we discuss?' This would be more in keeping with the culture of the profession." By remaining less than candid, we will never advance the profession.
Bloom says, "We tend to attribute our own bad behaviour to unfortunate circumstances, and the bad behaviour of others to their nature." So if we don't ignore, or rationalise, we demonise. None of these responses does any good because it doesn't help us understand that we are in conflict with ethics and the law. If we weren't, wouldn't we always do the right thing?
In a world changing at lightning speed, we need to face reality: The thing that, when you open your eyes, is still there.
The available options: Sink, swim or get out of the water.
Reality in 2010 is that we live in a world of economics: a world that expects free stuff is chock full of stuff (some awfully good, most good and some awful); a hodgepodge of people making that stuff; in a world in which there have been no new ideas 'since the Greeks'; where clients are getting a lot for free. And where a lot of clients (and the general public) seem to be thinking this is the way it should be, how do you argue otherwise?
In the 1990s, television journalist Fred Friendly developed the popular roundtable PBS series, Ethics in America. At the opening of an episode, he'd say, "Our purpose is not to make up your mind for you, but to make the agony of decision-making so intense, you can only escape by thinking." He'd twist the knife by complicating an ethical dilemma and expect his panel to think on their feet. He defined ethics as that gray area between what's right to do (ethics) and what you have the right to do (under the law). You'd get the point that there is no right answer when ethics get complicated. It helps to hold these thoughts in your mind when ruminating over some of our top conundrums: 
- Work on speculation - working for free with the hope of getting paid work (ethical issue).
- Plagiarism - stealing in order to create (illegal under the Copyright Law).
- Piracy - taking creative software/type fonts is like eating your own (illegal under the Copyright Law).
- Work for hire - giving all your rights away for a little cash (ethical issue, Copyright Law).
- Stock logos - undermining your value by creating work with little value (ethical issue).
- Cronyism - favoring your close friends, especially when shutting out others (ethical issue).
- Unsustainable design - ignoring that which ensures the future of design and the world (ethical issue).
Any one of these issues could itself become an article, indeed some could fill volumes; the nuances, the contradictions, the complexities are vast.
The ugly truthI guarantee that all of the design "taboos" listed above are being broken daily, if not hourly, by our esteemed colleagues, students and teachers. And that's mostly because we are not talking through these issues effectively. Weed explains that design has not advanced in terms of its ethics because, "Designers can often be conflict averse. To have impact requires conflict."
The design profession made its name on the talent and glamour of a relatively few highly independent designers who became icons. Yet the profession today is made up of 300 000 designers most of whom lack the status or clout to effect change on their own. As designer Roger Whitehouse of Whitehouse and Company says, "Our only hope is to unify under the aegis of a large organisation."
Perhaps a good start is mapping the ethics and legal terrains. Starting with the essential and very practical tenet of ethics - compassion. Whitehouse adds, "Don't screw others as you would have them not screw you." Another ethical concept is that of the greater good, i.e., the health of the community trumps myopic self-interest. And then there is simple fairness: What is just? If the purpose of ethics is to enrich humanity, these bedrock principles are the main guides on any ethics map.
Laws, on the other hand, are passed when it's clear that government must intercede and turn gray into black and white. And, in doing so, to prescribe guidelines, prohibitions, penalties and protections for everyone. A relevant example is the U.S. Copyright Law, which encourages and protects tangible creative expression to the benefit of all.
...First do no harmIt's hard to consider what's important to you and the whole profession at the same time especially in the heat of the moment. Yet humans are unique: We can hold two seemingly contradictory thoughts in our heads at the same time. If we can grasp the concepts, agree on the essentials, at a time when there would be no big threat in doing so, maybe the rest would fall into place.
Work on speculationsAIGA breaks down the ethical issue of spec work into five categories (I've annotated each below).
- Spec work: creative work done for free, with the hope of getting paid. In most work on spec situations where intellectual property is being developed, there may well be no firm agreement - no quid pro quo - no transfers of rights, no agreement on credit. Since the designer may have little information about the problem to be solved, it builds a relationship on quicksand -bad for all.
- Competitions: creative work done with the hope of winning a prize. Competitions or contests create a rocky playing field, pitting students and amateurs against professionals. Judges and their qualifications are not usually listed. Submissions are uneven at best. 
- Internships: creative work done for educational gain.
- Pro bono work: creative work done "for the public good."
Designer Debbie Millman, the president of AIGA and of Sterling Brands, says the scales of justice are quite tipped these days. "Clients are asking for spec work more often now. One rationalisation is 'agencies are going to do this so why not designers?'" Millman shows how unfair spec work is for the small firm or individual designer, "It's like going to a boutique and asking to borrow five dresses, wearing them all and the one that gets the most compliments wins." Illustrator Lisa Shaftel, national advocacy chair for the Graphic Artists Guild puts it more harshly, "It's actually more like asking five designer/dressmakers to each design and create a one-of-a-kind dress to your measurements that only you can wear. After the dresses have been made, you pick the one that you like most. Then you decide how much you want to pay for the one you like. And you do not pay for the others." I would add that maybe you don't really even like any of the dresses. When you look at it this way, work on spec does not benefit the greater good, nor does it benefit the client. Nor is it compassionate to creators.
Weed says, "We need protection. Planned Parenthood is a good example of that. We have to admit that people are just human." And while some designers think spec work is just fine even if there is no enforceable agreement with the client, the possibility of getting screwed is very real. Shaftel says designers are deluded about what their time is worth when they work on spec, "They don't add up the time spent on spec work every year and see it as a loss of income; they're doing work they don't get paid for. They only look at actual billings. If they added up all the time they spent working, including spec work, and then divided that into their earnings, I think they'd be shocked how little they're really paying themselves."
Designer Catherine Wentworth of No!Spec  says, "How did it get this way? Lack of education, the Internet and computers. Lack of education is a biggie. On one side, design organisations have not made it a priority to educate at the school level. On the other, (some) teachers are telling their design students to participate in competitions to get experience. Before the Internet, designers educated clients. Now with the Internet, well, there you go, clients don't know who to listen to so they are going with the loudest voices."
California State University, Chico Professor Barbara Sudick is in the process of writing guidelines for design educators through AIGA. She says, "Teachers have been assigning their students spec work for years and it seems that many of them have no intention of giving this up." Sudick, who teaches her students to consider the ramifications of their actions, adds, "Should we be supporting a design process (i.e., design contests) where a client gathers quick ideas from lots of different sources without sufficient interaction, research, remuneration or even any legitimate agreement? Is work for a nonprofit considered spec work or is it pro bono? The difference is the intention and expectation. Are you donating your services to get a portfolio piece or for the public good? In any case, is promoting spec work the kind of real world experience we want our students to have? The bottom line is there are no good consequences to spec work, particularly in an academic setting where the working methods we teach students form the basis of their professional values."
There are currently 10 000 student members in AIGA, double the number from six years ago. But if you consider that there are maybe 100 000 students out there being taught to work on spec, change will be difficult.
PlagarismRecognising that everything is stolen on some level is irrelevant. As long as you are truly reinventing it, you own it. However, there is such a thing as innocent infringement. Shaftel states, "Plagiarism is deliberate. And then, on the other hand, there is accidental similarity. Many of us have had the experience of coming across someone else's work that we've never seen before and it looks just like something we've done." Or unwittingly done something reminiscent of another's.
Are we being stifled because so much is copyrighted now? The Creative Commons  is an attempt to get creators to release some of their vast trove into the public domain. Writer Jonathan Lethem writes provocatively in The ecstasy of influence: A plagiarism (a work in which he has lifted everything), "Honoring the commons is not a matter of moral exhortation. It is a practical necessity. We in Western society are going through a period of intensifying belief in private ownership, to the detriment of the public good. We have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for their private gain. Such raids on our natural resources are not examples of enterprise and initiative. They are attempts to take from all the people just for the benefit of a few." An ironic reversal of the intent of the Copyright Law?
Copyright Alliance executive director Patrick Ross adds to this, "High on the irony meter, in his book Free, Chris Anderson plagiarised Wikipedia, which some would argue is itself largely plagiarised - and the idea of the book, of course, is that everything should be free." Free is of course, not. It costs $26.99. And Chris Anderson holds the copyright.
Naomi Klein author of the bestseller No Logo chose not to copyright the design of the name (cover designer, Bruce Mau) ignoring the urgings of her publisher. She was later sent a warning letter from a man who had started a line of No Logo clothing using the No Logo logo. She was being told not to exploit her own creative work.
Renegade illustrator/designer/street artist Shephard Fairey built his reputation on "sticking it to the man." He is claiming his unauthorised use of an AP photo (the basis of his Obama Hope poster) was political commentary (fair use). Shaftel expects when the suit plays out, "A jury will decide if the Hope poster is original enough to qualify as a Fair Use defense for infringement. Regardless of the verdict, it's costing Fairey a lot of money in legal fees and time. What good is self-righteousness if you lose your house? In real life, the lawyers win because they always get paid. He would have been better off paying a licensing fee for the use of the photograph; it would have cost him a lot less than his legal bills." Wouldn't Fairey want someone to ask him first if someone were going to exploit his work? What if the AP photographer was a McCain supporter and didn't want his photograph used to the benefit of his rival?
Ross says, "We are in a remix culture. Some feel there should be an expanded exception under the fair use provision of the Copyright Law. But copyright gives a creator more than just an avenue to compensation. If you draw an illustration of a woman on a beach and it gets used in a porno mash up and this offends you, you would be powerless to do anything." Ross adds, "The idea of Creative Commons at least recognises that creators have rights. That's a good start. But they need to do a better job letting creators know what rights they're giving up."
Agencies and corporations are wary of copyright and often don't allow use of any image that is the least bit suspect in terms of rights. Currently if you can't find the creator to get permission, then you cannot copy the piece without breaking the law. Period. The Graphic Artists Guild mounted the Ask First campaign a few years ago to alert potential copyright violators to avoid the lazy trap (i.e., not bothering to ask first). 
In her firm Millman says, "We show a comprehensive, we pay for the rights to use any photos and illustrations in it. But before we do, we have to get agreement on what the ultimate use would be. We sell all the designs, even preliminary illustrations, photos - in a buyout to the client. Once a creator who claimed we copied his work sued us. Luckily we had all our sketches. Keep your sketches."
Piracy"Copyright piracy is rampant. I have never met a photographer whose work has not been used illegally." Ross says. "Stealing a digital work has little or no cost. This makes it seem like the original also has little value. But some photographer somewhere spent a lot of time creating the photograph. There is a fundamental disconnect: There's a reason you like that photo, it was done well, therefore it has value."
Another form of piracy that is out of control in the design world is type fonts. It's not the typeface that's protected. An A is an A is an A so type forms are not copyrightable. Software may, however, be copyrighted. A visit to Font Bureau's site shows the biographies and pictures of the very real individuals who created many of the fonts we all love. They need to get paid so they can create some more fonts we will love. Students are undoubtedly primary culprits of piracy. One solution would be a tiered licensing structure that would allow for student use.
Jason Louie, a graphic design student at California College of the Arts, says the online experience is intangible: "Value is about perception. People are rethinking how to make the experience of the thing valuable again."
Snakes on a planeThe Neo Cortex is part of the rational brain - the Cerebral Cortex - the largest and newest part of the human brain. It can understand language, reasoning, abstract thought and it exercises self-control. Among many things, the Neo Cortex acts as interpreter for emotions and instincts that rise up from the Reptilian Brain, the ancient Limbic system. When we feel threatened, fear and aggression surface injecting stress hormones into our system: Without the Neo Cortex as co-pilot, the snake is flying the plane.
Continue to part two.
- The Atlantic, First Person Plural, November 2008.
- The Graphic Artists Guild's Code of Fair Practice warns against Work on Speculation/Contests but falls short of condemning the practice for similar reasons.
- Work for hire, stock images, cronyism and unsustainable design will be discussed in Part 2.
- Graphic Artists Guild has developed guidelines for competitions (www.gag.org).
- Tad Crawford, a regular contributor to Communication Arts magazine, is an expert on Copyright Law.
Reprinted with permission by Communication Arts, ©2010 Coyne & Blanchard, Inc. All rights reserved. www.commarts.com
About the authorA graphic designer for many years, DK Holland is based in New York City. She was a partner in several design firms including Pushpin. Writer, editor of many books on design including Design Issues (based on her popular column of the same name in Communication Arts), DK also wrote the book, Branding for Nonprofits: Developing Identity with Integrity. She thinks about ethics a lot which she also teaches in design schools internationally.