How to Work with Designers as Independent Contractors

 In Intro

When hiring a designer on board to join you in your fashion business or venture, it is necessary to consider whether you are looking to employ a designer as a full time employee or rather hire a designer as an independent contractor.

Designers as independent contractors follow the general guidelines that govern independent contractors of other industries.  This means that they are not covered under the Employment Standards Act and also do not receive benefits, workers compensation or insurance like an employee.

However, the distinction between an employee and an independent contractor is not as defined as it used to be. Businesses have entered into agreements with an “independent contractor”, but the courts have increasingly found that it is the substance, not the intention of the relationship, that determines whether an individual acts as an independent contractor or an employee for the company. The Ontario Court of Appeal’s decision in Braiden v La-Z-Boy Canada Ltd demonstrates just this. Mr. Braiden’s agreement with La-Z-Boy stipulated that he was an independent contractor, but the courts found that an employer-employee relationship existed. Thus, Mr. Braiden was entitled to certain benefits that an employee would receive, including common law reasonable notice.1

The work of an independent contractor may be the same as if you were to hire a designer onto your team as a full time employee, however there are a few employment law topics that need to be highlighted when working with a designer as an independent contractor. Further, once a business has chosen to hire a designer as an independent contractor, knowing how to work with them will allow for the business to attain their final objectives in a structured and productive manner.

1. The Process

When working with designers, communicating what you want in terms of details and ideas, as well as process, is essential in keeping with the timeline and completion of a project.

There are a few processes that contracted designers will use to propose their ideas for the final project.  There is the multiple option process and there is the hands on process, where the business who hired the designer is at the forefront in helping with design and all related decisions.

Some start-ups have general goals for new products or designs, which often leads to the designers creating multiple options. The start-up can then choose which alternative best fits with their values and vision. For the designer, there are many positive aspects of engaging in a collaboration as such, such as greater creative freedom to express themselves through the creation of multiple proposals or plans. By the same token, however, a consequence of greater freedom on behalf of the designer usually means greater responsibility to make sure the corporation is pleased with at least one of the options. Further, it usually takes more time and effort to present multiple proposals. The business, in turn, receives an increased number of options to meet their needs. However, the turnaround time may be longer, which may not always align with specific marketing plans and timelines.

On the other hand, some start-ups would rather be more involved in the designing stages, so that the final product produced is exactly what they want. Although this option requires more interaction (and often, more time on behalf of the start-up), it also allows the company receive a finalized (or close to finalized) end product. This process proves to be more beneficial for a business, as it is more time efficient and direct. However, a common consequence for designers (and a reason why there may be push-back from the independent contractor), is the fact that the designer receives less freedom and therefore minimal creative independence.

When choosing which method best works for your company, it is important to consider the length of time the design process will take, the ability and timeliness of feedback, and whether or not the company prefers the last design given by the independent contractor to be the “final” design. Consideration these factors will best assist your business in choosing  the appropriate process.

2. Understand Each Others’ Values

A lack of understanding of each others’ values can be detrimental to your working relationship with a designer. Designers often have their own areas of interest, ideas, styles and views.  As well, designers want to be associated with business that they can express for and does not compromise their own values as designers. Their interests lie in whether what they can create for your company productively promotes and garners the attention that they want for your company as a client and for their own work.  Therefore it is important, as mentioned above, that communication make clear the path you take on this working professional relationship.

With this said, simply because you hired the designer, it does not mean you have to play by all their rules. It is equally as important that they understand your values and what you hope to achieve and accomplish throughout this collaborative process. If the designer’s vision is completely different from your company’s values, you have to make a decision. Is the designer you have chosen really worth compromising your brand value for? Or, is it better to stick to your company’s vision and ensure that a more flexible designer is hired.3 Usually designers are open and understanding to the vision of your company and want to communicate it effectively through their work.

3. Intellectual Property

It is very important that independent contractor agreements include mention of intellectual property rights. Standard agreements usually have an assignment of intellectual property.4 In order to understand this is industry standard, however, it is first essential to look generally at the ownership of copyright.

Generally, the author of a work is the first owner of copyright, unless the author is an employee of the company. If the author is an independent contractor, the rules slightly differ. The ownership of copyright must be discussed and decided before the design is created, or else the first owner of the copyright is automatically the author (i.e. the independent contractor). Additionally, the author is the owner of moral rights of the design. Moral rights are the author’s right to be associated with the work. The important difference between copyright and moral rights is that copyright may be assigned or licensed (but this must be in writing and signed by the owner) versus moral rights may not be assigned (but may be waved).

However, depending on whether you are working with a larger design firm or an individual as an independent contractor, there may be some leeway regarding who owns the copyright. As mentioned above, when the designer is an independent contractor and creates work for you, they automatically establish copyright over the design. However, you can ask for a copyright assignment if both parties find this appropriate. The designer is legally able to contractually assign portions of his or her intellectual property rights in intervals of times, exclusivity, and use.5 For example, the designer can give away the rights for a time frame of two years, so long that the company does not lend the designs to anyone else. Ultimately, whether or not the designer wants to do this is often based on the price that you are willing to pay for the copyright. Hopefully, if the design is essential to your brand, the designer will understand and negotiate fairly.

Written By: Alessia Monastero

As with all Fashion By Law Posts, this information does not constitute legal advice. For further inquiries, please contact info@fashionbylaw.com

1 https://www.dlapiper.com/en/canada/insights/publications/2015/06/canadian-employment-news-series-june-2015/employees-and-independent-contractors/

2 http://lawontherunway.com/blog/when-working-with-designers-as-independent-contractors/#sthash.Y3of7Sht.dpuf

3 http://mashable.com/2011/11/12/designer-collaboration-strategies/#mzp0AtgSi5qC

4 http://www.graphics.com/article-old/independent-contractor-agreement-basics-designers

 5 http://www.smart-biggar.ca/en/articles_detail.cfm?news_id=609

6 http://lawontherunway.com/blog/when-working-with-designers-as-independent-contractors/#sthash.Y3of7Sht.dpuf

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