The Challenges Facing Freelance Logo Designers and NDA's
Thought I'd share a letter I once wrote to a client, regarding some compromises on an NDA (Non Disclosure Agreement) I was asked to sign, for a logo and brand identity project.
The challenge was that my client was an 'agency', acting on behalf of their client.
My role was to produce 3-4 logo concepts, that 'my' client would show their client. Their client would then choose 1 of those concepts for us to move forward with.
I felt it addressed a number of issues that I had been worried about before in other, but had not had the 'courage' to raise them with the client.In this case, I just felt I needed to raise these recurring concerns.
I'm very glad I did, as the client is question was only to please to accommodate my suggestions, which made it all the easier.
I have since added these points to a Contract template that is used in response to signing any further client NDA's.
The biggest lesson learnt here: Don't be afraid to question the NDA, if it doesn't 'flow' with your own contract, or way of working.
Note: I've pretty much just copied and pasted this letter as I wrote it, but obviously removing names etc.
The NDA Letter
With reference to your NDA and contract: I do have my own contract, but this may conflict with some of the aspects in the NDA, which isn’t a problem as I can change it as required.
The main topic of interest: relates to 'Ownership of Copyright’ of the logo design ideas submitted to you, and also my usual approach of putting my finished logo and graphic design work in my portfolio.
Ownership of Copyright
Typically, with OoC (Ownership of Copyright), this automatically passes from me to you once the balance has been paid ( I do also sign a form that I send clients showing Transfer of Ownership)
It is at this stage when I’d usually release the final digital files, concepts to the client.
No final balance; no final files or Transfer of Copyright.
One Logo Design Idea
The other issue is that the client will only always get the copyright for the one chosen logo design, and none of the passed-up previous concepts, ideas, sketches etc.
In this case, the NDA would conflict this rule of mine as I am to present you with 3-4 logo concepts which you are to show to your own client.
If your client doesn’t go with any of the ideas, then this is a bit of a grey area: you would have 3-4 ideas, that you’ve paid for, but yet I would ordinarily only allow for 1 idea in relation to Transfer of Copyright.
This is meant to protect me from a client using any of my previous ideas, that they’ve previously passed up. I might have created countless sketches and vague concepts, maybe a handful of more polished digital ideas, but my client will only ever get ownership of the one chosen idea.
I’d need to make some kind of provision that you are not permitted to use my concepts (except 1, as you have paid for that) for other works’/clients’ if your client doesn’t select any of mine.
Also, this would apply if your client does choose an idea, this means the other remaining concepts cannot be used or repurposed, by you, for other clients/future projects etc.
• If your client awards you the pitch, and we get the go ahead to progress with one of the concepts, only this 1 logo design concept would be covered by the Transfer of Ownership of Copyright.
The remaining logo concepts remain my ownership, but I’d adhere to the NDA and remove any mention/reference to the clients brand name etc, obviously. This would allow me to repurpose a logo mark, for example, that they passed-up, for another client. Not clear at this point if the Ownership of the chosen concept eventually goes to you, or to your client.
• If the client doesn’t award you the pitch, then you are only permitted to use/repurpose one of the concepts I’ve created, for any other project/client you see fit in the future. You’d just need to let me know which one, and I’d arrange the Transfer of Copyright etc accordingly.
Showing of Client Works
Typically, after a project is complete, and the client is happy etc, then I’d put the logo design on my portfolio, external portfolios, and usually blog about the project etc.
I understand the NDA prevents me from doing this initially, but I’m not sure if this is a ‘forever thing’, or time limited?
So for example: you win the pitch, and we work on a final version of the logo. Would I, at any point in the future, be able to put this design in my portfolio?
Sorry for all this, but I’ve been burnt before, and seen other designers’ in a similar position see a number of their ‘unwanted’ concepts actually being used.
I hope this all makes sense, and feel free to suggest edits/amendments, then I can include this in my Contract and send it to you for your approval, along with the Invoice.
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