About 20 years ago, a 30-something graphic designer, a leader in the profession no less, scoffed at me, "Why do we need to talk about ethics? You either have them or you don't." But ethics is neither black nor white. The whole point is, there is no easy, good choice. Did this designer speak for the profession? Perhaps. Fast-forward twenty years. At no time has a working understanding of ethics been more essential because it is so lacking.

Law and Order
Since professional ethics is about fair and balanced decision-making, ideally that means good ethical thinking promotes the overall health of the community (e.g., practitioners, clients and the public). Therefore you may do something that is totally legal and yet quite unethical if it is unfair to part of the community.

For instance, if all graphic designers, illustrators, photographers were to understand that what they sell are rights, then the standard practice of selling rights would be preserved—and with it, some ethical standards. But if too many practitioners give their rights away for cheap or don’t pay attention to what they’re selling, then the whole profession gets sloppy: The community is tarnished, out of whack, hence demoralized. That’s what has happened. The public is clearly not enriched by inferior design; most clients don’t necessarily count design as a valued asset; and designers cannot subsist on what they are making. The profession’s essential support—the associated institutions and companies who rely on designers and design to thrive—is also threatened. 

It’s Complicated
Agility of the logical/emotional mind is key to making confident decisions. It’s the role of the logical brain to rein in emotions. Recognize reality. The emotional (subconscious) brain, while creative, does not make ethical choices and doesn’t understand intentions.

The client is the 900-pound gorilla in the room: He smells both fear and confidence. Designer Stefan Sagmeister balances the needs of the client with his own when he decides which rights he will sell or retain. He says, “We are working in all models: For the music industry, all the rights are transferred to the client (I remember a Warner Brothers contract that included the phrase ‘...throughout the universe including media yet to be discovered’), all the way to corporate models where we discuss the scope of media and timing when estimating and then charge extra when the scope is widened later on. On self-initiated projects, like the Things I have learned in my life series, we retain all rights.” Understanding the long-range impact of any agreement from the gorilla’s point-of-view as well as yours requires a mature, informed point of view.

Dance Fever
The Joffrey Ballet hoped for something truly innovative when they recently posted a project on CrowdSpring.com, offering $700 to the winning designer for its new gala invitation. CrowdSpring is an online brokerage that claims to have 50,000 designers eager to design your logo, brochure, whatever, all on speculation. Some perspective: 50,000 is 2.5 times the number of members in the AIGA and 50 times the number of members in the Graphic Artists Guild, two of the organizations that protect the health and well-being of graphic design. Posting the project on CrowdSpring seemed logical to the Joffrey, a well thought of cultural institution in Chicago. After all, they find their dancers by audition.

While a huge number of designers are unemployed, and design firms are universally hungry for work, CrowdSpring claims it provides a service to the community, which, it says would otherwise not have access to “quality design and designers.”¹ Designer Lance Rutter of Legendre+Rutter, a past president of AIGA Chicago and just one of the many who expressed indignation, says, “I’ve had designers unabashedly say to me, ‘I do it—so what? I do it quick and cheap by using stock photos. They’ve even admitted to ‘ripping off’ another designer’s style or idea.” An average of 77 solutions are submitted to CrowdSpring for a project, from which the client chooses one. Rutter says, “That means there is a 1.3 percent chance that your solution will be selected; a 98.7 percent chance it won’t. How thoughtful or relevant can your work be?” Where is the quality? Did the 77 designers who submitted have rights to the images they used in their comprehensives?

CrowdSpring covers itself. Any liability falls to the winning designer, who must sign a Works Made for Hire (WMFH) agreement, which means CrowdSpring and its client are free to go on to exploit the work without any additional benefit to the designer who created it.

Rutter observes, “Now there is a middleman who sees design as a profit center. They see they can take advantage of designers, who love what they do. This facilitates bad ethics.”

The 900-pound gorilla has an armload of law books. And so an understanding of the law, in particular, the Copyright Law, often called the Creator’s Law, is obviously important to the success of the designer as well. The bugaboo of that law is the highly questionable WMFH loophole (which is unique to U.S. Copyright Law). When asked if he has ever signed WMFH, Sagmeister says simply, “Yes, I have.” Sometimes it’s not a bad move. But usually it is.

WORKS MADE FOR HIRE
An independent creator, except when working in certain narrow categories², is not legitimately working for hire. But, to totally protect their own interests, lawyers tell their clients to get WMFH agreements signed, regardless.