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Scenario:

  • You design a piece for Company A. The piece performs very well for Company A. So much so that they use the piece for several years.
  • Eventually Company A shuts down.
  • A few years later, you are contacted by Company B who shows you samples of the piece you designed for Company A and wants something similar.
  • Through price negotiations you learn that Company B has discovered you did the design for Company A and most likely have the files associated with the piece.
  • Company B wants you to use the files created for Company A and merely cut/paste their info into the same piece.
  • You know full well that Company B will pay someone to replicate the design if you refuse the work.

Do you smile and oblige?

Do you refuse?

Are you at all concerned about copyrights?

Is there an obligation to Company A to maintain their pieces and not share them with every company who merely asks?

Does the fact that Company A has shut down alter your decisions?

Of note: I'm not referring to "template" design. A full product is developed for Company A and they pay for that product accordingly. Nothing was ever referenced as or maintained to be a "template". "Template" indicates a client is aware that the design is used many times over for various (other) businesses. Customarily, "template" use reduces the initial costs to the client.

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I think it hinges how much of the piece is function, and how much it's form/branding. Resurrecting something functional like an interactive map seems reasonable to me - there's no reason why a thing that works should die with the company that used it. If they're asking you to help them take something that is wholly part of a dead company's brand style, like a logo or advert, it seems a bit much like grave robbery. If it's something in the middle like a brochure or web layout, I'd say the task is separating function from form - old function, new form –  user568458 Aug 31 '13 at 9:25
    
Direct mail piece. Overall design is branded to meet original company entirely. There's no individual element which could be reused effectively (such as an illustration/map). –  Scott Aug 31 '13 at 9:34
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@Scott One more thing™ You know they're also going to skip out before they pay you. Insist on a written agreement and an advance on anything B wants before you move your mouse. They've told you something about themselves. –  Stan Aug 31 '13 at 18:00
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@Stan I refused the work. I was curious what other's would do. –  Scott Aug 31 '13 at 18:02
    
@Scott Warn the others! Seriously, I'm sorry you couldn't recoup the opportunity another way. –  Stan Aug 31 '13 at 18:20
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4 Answers

up vote 4 down vote accepted

I wouldn't do it, just because a company's doors may be shut down still doesn't mean someone isn't planning on in the future to re-open. It's a tough economy and myself couldn't justify having a store front with the way everything is going and yes there may be an ethical issue. I say this from experience, just because the doors aren't physically open doesn't mean the company cannot one day be sold, or someone owns the rights.

Also, as stated its an ethical issue. Do you really want to be associated as the designer who does not create custom work but sells previous work to clients? I know that it may not seem like that so look at it like this. Possible Client C knows your work but sees that the work for Client A you purposed for Client B. Not saying you mean to do it personally but you have to agree it looks bad.

Solution: Offer the ethical option and explain why. If they are decent and you approach the situation as "I cannot in my heart do that" I would imagine and hope if they are wanting to start with a good reputation that they will understand and you can work on making something similar.

From the design spectrum you know they already like your work. They have hunted you down to see if you could do something with it. I don't see why you shouldn't be able to create something different or find something other than duplicating work in your favor.

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The dilemma.. at least on their part... paying for a copy/paste of information, or paying for the design of something similar. –  Scott Aug 31 '13 at 5:46
    
And this all came about because they want the design, but don't want to pay for the design. They merely want to pay for a copy/paste of their information into files already in my possession -- which ultimately doesn't sit well with me at all. –  Scott Aug 31 '13 at 8:25
    
@Scott They're cheating, you know they're cheating, everyone so far agrees they're cheating. You may refuse the invitation to cheat. –  Lauren Ipsum Aug 31 '13 at 12:28
    
@LaurenIpsum You are right... and I have. I was interested in the perspective of others. –  Scott Aug 31 '13 at 17:57
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As someone who is always striving to improve, my first reaction would be to say that I am flattered that they would want to use the piece wholesale like that, but that together we can do better. Part of the value we bring as designers is working together to create something unique and custom for that client, and that client only. Otherwise, what differentiates us from a quick printer with a book of templates to choose from?

I would not outright refuse to work with this client immediately, but I would refuse to be dictated to in this instance. This is an opportunity to educate this client about how design works. I would let them know that if I were to comply with this kind of request, he would never be able to trust that my work was original. If I would recycle my old work, even at his explicit request, then what would prevent me from stealing someone else's work?

Originality is what you pay a designer for.

It sounds like this hypothetical client sought out this particular shop looking intentionally.

Hm. One of two scenarios here.

A. Either they are not that particular about design (not because the design isn't first-rate, it's just that they are willing to recycle).

or B. They are trying to pull a fast one. Perhaps they are trying to appear that they have taken over Company A's assets by wearing their skin.

If they are not too particular about design, and want to save money, there are better ways. If I can't make any headway on selling a custom design, and appealling to their ethics, I'd suggest they hire an up-and-comer looking for a portfolio piece in exchange for a lower fee and more creative control.

If I get the sense that it's B. they're after, I'd go no further with them. They are evil. They can buy Company A's assets legally and as the new owner, use the artwork in good conscience.

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If Company A is shut down, there may not be anyone to who owns the copyright.

That said, even if there's no legal issue, there is an ethical one, not to mention it's just plain stupid from a branding standpoint.

Any company which actually cares about their own branding is not going to steal someone else's work or look, so we can infer that Company B has no corporate branding, no brand standards, no design, and does not care.

If you are an employee of Company B, you can argue why they should not lift A's piece wholesale (branding doesn't match, it's obvious that it's lifted, will make them look bad, etc.). If Boss insists, you can either comply or quit.

If you are a freelancer, you can make the same arguments, but if they insist, you can politely refuse. Company B is welcome to take the printed piece to Boogie Woogie Bugle Boy Designs and have them replicate it, but your hands will be clean.

I have been the employee in a similar (although not identical) situation. I made the argument, was ignored, did the task, and eventually quit the company for greener pastures. Boss made a point of scrutinizing his competitors' pieces closely to make sure they weren't stealing his work (and caught one of them doing it).

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Agreed.. as an employee I'd express my dislike then shut up and do what I'm told. As a freelancer it all seems so unethical. –  Scott Aug 31 '13 at 5:47
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To me, it doesn't matter whether A is still open or not. It doesn't matter if B came to me moments after A used my work on the same day.

In fact, I run into this all the time.

It depends.

Ideas are not copyrighted. Ideas are a dime-a-dozen. Variations on a theme are stock-in-trade. There are trends to follow and that become fashionable—you ignore this at your risk.

I have "stock" samples in my portfolio that I suggest for economy jobs to get more bang for my client's buck. Non-exclusive use is part of the agreement.

Similar is not the same.

If someone wants something similar to something I've designed, I'll design something similar for them, no problem. I'm pleased to do it.

And there are times that I will go to great lengths to "mimic."

Suppose that existing presentation artwork must be updated and the original is unavailable and the artist who put together the presentation is not available, either. In that case, I will match the style of the original presentation, perfectly as I can, so as not to "jar" the sensibilities of the audience, distracting them from the content with an inconsistency.

It this case, I would simply charge for the custom work I perform.

I have learned to charge and bill for "creative" separately from "production." That might help as there is design—the verb, and the noun. Just because the creative is done, does not mean that I never charge for it, again if I re-use it. I resell "stock art" every time I use it.

Let's talk about the files, in my possession. If I develop a template, I'm going to exploit it for what I can, for as long as I can, as many times as I can, with as few variations as is possible for maximum return on my investment—or, I go out of business and go to work for someone else doing it for them. I do run a business, after all.

I will also review past jobs to see what work I can salvage to save time and development expense. "Boilerplate" is the term for piecemeal substitute of design elements. Stock art is something I've both created for sale and purchased from others.

I sub-contract work for colleagues. I must copy their style and direction - exactly.

A contractor can't tear down a whole house to start over when an addition is requested. Matching the existing design isn't unusual.

But, the term "Knock off" suggests something else to me.

Suppose A has established a positive image, and an association with an identifiable "look." B wises to take advantage of the goodwill established by A by "passing itself off" as A. This is also known as infringement, legally, and can be actionable in court.

This is a Special Case. No. I'll try to talk them out of it in favour of a more ethical solution. I will warn them of the possibility, as well. I want their business, though.

It depends on intent.

Suppose, through some quirk of fate, you find that some of your work is used in a parody of the company/person in question. A parody is meant to mis-represent as part of the communication design.

Suppose you stumble upon a graphical solution to something that becomes a part of the pop culture like the "chef" printed in red on every pizza box by Wenk, or the smiley face by Ball. Do you refuse to use such icons? Exactly where do you draw (or plot) the line (or 2pt. rule)?

"The devil is in the details."

SHAMELESS PLUG: Do Good -D-e-s-i-g-n-, by David B. Berman, FGDC, R.G.D. (AIGA) How designers can change the world. Various cases are discussed to help you clear your mind about some ethical issues.

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While it is true that ideas can not be copyrighted, the implementation of the idea can be copyrighted. While I'm not a lawyer, using the same implementation for a different vendor is nothing short of infringement. If it were not, you'd see identical ads for companies all over the place with merely different logos and contact information. As a designer, it's part of my job I feel to protect the brand identity of clients I've worked with in the past regardless of their current business status. –  Scott Aug 31 '13 at 8:28
    
I've also edited the question in reference to "templates". –  Scott Aug 31 '13 at 9:17
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