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Q-pay for commission work


#1

Hello All, I’m about to enter into a design agreement with a large US
handbag company, and I was hoping someone in Orchidland had some
insight for me. I need advise on compensation as it relates to this
project. This is the first time that this company has gone outside
their firm to collaborate with a designer. They manufacture all the
hardware and assemble their bags in-house.

Currently, the bags will be sold e-commerce only on their site with
discussions of opening their own retail stores. They have a large
PR firm and an impressive website. This project has the potential to
expose my work to a huge market with their ability to promote the
designs and my name. Their focus is to get the work on celebrities
and in all the fashion magazines.

This company is interested in 3 of my existing amulet designs. I
will work with them to size the amulets to the handbag, if needed,
and I will deliver the finished piece for them to assemble to their
handbags. I will be required to stock the amulets and
They also stated that they will “somehow” use my name on the bags
for design credit as it relates to the amulets. They also offered
to link my jewelry website from their website. I agreed to give
them a percentage of the jewelry pieces sold from this link.

One catch, I left them with some of my handbag drawings with the
amulets. This week I get the prototypes, and based on discussions,
I have a suspicion that they incorporated my designs (partial or
whole) into the bag designs. Once I receive the bags, I will
present them with a formal designer/client agreement with my
requirements. I will not continue designing without an agreement.

I have already spoken to them about compensation at an hourly wage
for the conceptual/engineering stage of the handbags with my
amulets. I then requested a percentage of the bags sold. They
agreed that the hourly wage was fair, yet they stated that they only
want to pay me for the amulets as the bags were sold.

If the handbags are in fact my designs, should I require a
percentage of sales and what is a fair percentage? Or, should I ask
for a flat fee for each bag design? My concern with this is that
they could use the bag designs for years with other amulets. Does
someone have an agreement for this project scope that they would be
willing to share? Any advise or insight is greatly appreciated.

Thank you, Reba.


#2

You will probably get some good advice from other Orchid members. I
believe that the BEST advice anyone can give you would be to find an
attorney who SPECIALIZES in the protection of 'intellectual property’
and to see that person IMMEDIATELY. David Barzilay, Lord of the Rings


#3

reba, reba, reba, never give a design to anyone or company with out
an agreement…been there done that , got the t-shirt as far as
getting a % of each bag dream on …they will see it as you getting
their bottom line up and that is trouble for them…charge them a
licensing fee annually…they start at 1500 for a decent
design…remember they want you…what do you think they’ll make and
how many??? hope this helps lisa mcconnell


#4

Greetings Rebecca, I don’t have time to get into this as well as it
should be covered, but in the future, all agreements, understandings
should be made upfront- this way both parties know what the
expectations are. I have been on both sides of the negotiations
table. One effective tool is a “Letter of Nondisclosure”. When I was
on the marketing side of the table (in my administrative days) I had
artists or companies hand me these contracts that were 2 or 3 pages
long. There was NO way I was going to take half an hour to review
this before looking at their merchandise or art (and our legal
department wouldn’t have approved of my signing such a document
without their reviewing it first). Here is the letter of
nondisclosure I use. It is to the point, short enough to get the
message across, but not overwhelming to the person who is asked to
sign it BEFORE you show them your work. My lawyer said it is good-
but PLEASE have your lawyer look it over to see if it is good enough
for your needs. Here is an example:

NON DISCLOSURE AGREEMENT
Wolf Designs Nouveau Jewelry Collection

The companies, partners and contacts agree that any product design,
theme, concept marketing strategies, or any other information
obtained by them from Kate Wolf regarding the Nouveau Jewelry
Collection shall be considered as the private and privileged
property of Kate Wolf. Such regarding the Nouveau
Jewelry Collection shall not be copied or divulged to any firm,
institution or individual, or used in any manner, competitive or
otherwise except with the written authorization of Kate Wolf.
Furthermore all designs, molds and models regarding the
above concept shall be returned promptly to Kate Wolf if no written
agreements are made. The parties acknowledge Kate Wolf=B9s rights
for injunctive relief by any court to enjoin or restrain the
unauthorized disclosure or use of such

This ________day of _____________________, 2002

By  _______(my signature)  of Wolf Designs

and _____________(printed name) _____________(signature)

Representing   ____________________(company name)

One other quick note: You can have paper embosser made (most
stationary stores can have this made for you). This has your logo on
it, and something like this “This original proprietary design is the
exclusive property of Kate Wolf, any use without written
authorization from Kate Wolf is strictly prohibited.” Your original
art should have the copyright symbol, date of when you created the
art work and your signature on it. Before you bring your designs to
show a prospective client: Emboss the original, signed art. Make at
least 2 copies. One copy is for your files. Mail the other copy to
yourself, registered mail (make a notation on back of the envelope of
what is in the envelope). The postmaster will stamp the seams of the
envelope with a dated postmark. Do not open this envelope, keep it on
file. If the company rips you off, you can take this envelope to
court. The judge will open it. It will prove that you did your art
work first. I also mail myself (registered mail) raw castings, one
from each model in my collection, cast in silver. I put picture of
the contents (put the castings on a copy machine) on the back of the
box.

Please, before using any of this advice, check with an attorney to
see if it covers you well enough. Of course, laws vary in each
country. HTH! Kate Wolf in Portland Maine http://www.katewolfdesigns.com


#5

Dear David:

I was told that I could copyright my designs by photographing it,
placing it in an envelope & sending it to myself. From the date
that I receive it, it cannot be copied. What are your thoughts on
this? Audie Beller of Audie’s Images


#6

You can copyright your work just by putting the words copyright,
your name and, the date. However you will not be able to collect
damages in a lawsuit unless you register it with the copyright
office you will only be able to get a cease and desist order.
Mailing yourself copies of your work or ideas only makes money for
the Post Office.

Jim

James Binnion Metal Arts
Phone (360) 756-6550
Toll Free (877) 408 7287
Fax (360) 756-2160


@James_Binnion
Member of the Better Business Bureau


#7
    I was told that I could copyright my designs by photographing
it, placing it in an envelope & sending it to myself.  From the
date 

IANAL but I can tell you the copyright is pretty clearly
spelled out at the www.loc.gov web site’s Copyright Office section.

TODAY, NOW, while you’re thinking of it address 5 envelopes to
yourself then stuff 3 blank sheets of paper in each and TUCK the flap
in, do not seal it. RUSH to the Post Office and mail them–with
proper postage paid, of course. When you receive them set them aside
so that anytime you need to have ABSOLUTELY NO proof of the date of
something you can stick it in one of the envelopes and seal it–but
hey, it may get a few laughs from a couple of attorneys and it may
confuse a few who can’t think straight. In other words NEVER again
trust any “legal” opinions of whoever told you the myth of sealed
envelope “copyright” or “patent” or whatever.

You OWN copyright in your creative works THE INSTANT they are in
"fixed" (AKA permanent whether you later destroy or rework or
whatever) form. You can go that one better by marking your works with
notice that makes it clear you claim your copyright. The notice is
the copyright c-in-a-circle symbol and the year of creation or
publishing (if applicable) and a generally recognized form of your
name. For Jewelry with space limitations the c-in-a-circle and your
distinctive stamp are all that are required.

You can go one step further and actually register your work with the
copyright office–the rules for jewelry have some special exceptions
so you don’t have to send 2 copies. Registration gives you some EXTRA
uumph in a court case such as maybe entitling you to treble damages
but registration is NOT required for you to win damages in court.
(Unfortunately it’s rare that any court case actually has the
magnitude to have damages overcome the costs but with the possibility
of treble damages that may bend things in your favor.)

James E. White
Inventor, Marketer, and Author of “Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)” www.willitsell.com


#8
I was told that I could copyright my designs by photographing it,
placing it in an envelope & sending it to myself.  From the date

Just a clarification of my earlier post. IF your work is done “for
hire” then YOU DO NOT own the copyright–your employer does and THEIR
NAME is the “author/creator” name as far as copyright registration is
concerned. The “for hire” rule can be excepted by a clear agreement
in writing before the work is created that the contracted creator
will own the copyright.

A very strong word of advice is get your copyright understanding
correct BEFORE you do anything because fixing it later is usually
fairly impossible. Ignorance is NO EXCUSE as they say and, by law,
business people (e.g. jewelers) are ALWAYS held to a much higher
standard in that regard than the common consumer.

Sorry for the yelling but I see 2-3 inventors a week whose rampant
ignorance greatly endangers their rights and there is just no excuse
whatever for it. Unfortunately it appears the same ignorance level
exists in the creative jewelry field. “Well that’s what my grade
school teacher taught me” won’t carry any weight in court. I’m sure
most of you will find it easier to get mad at me rather than to take
the trouble to study-up and get your ducks in a row but that’s OK; if
10% do their studies and get it right I’ll be happy.

James E. White


#9
anytime you need to have ABSOLUTELY NO proof of the date of
something you can stick it in one of the envelopes and seal it 

James, I won’t argue with your analysis of the legality of mailing
material to oneself since I have no expertise in this matter;
however…if you send the mail registered it will be stamped on all
seams by the Post Office, making the above scenario impossible at
least for any but the most accomplished of counterfeiters.

Beth


#10

Considering that it costs just $30 to register a group of designs
with the Library of Congress Copyright Office, and if done within the
time framework registration allows greater legal protection and
punitive damages to be collected, I don’t see why anyone would chose
to simply send themselves a letter. It is very time consuming and
expensive to take someone to Federal Court, however.

Rick Hamilton
Custom gold and platinum jewelry
CAD/CAM and conventional modelmaking


#11
    however...if you send the mail *registered* it will be stamped
on all seams by the Post Office, making the above scenario
impossible at least for any but the most accomplished of
counterfeiters. 

You can get as elaborate as you want but the courts will quickly–as
they always have–decide that if you’re smart enough to get elaborate
you’re smart enough to beat your own system too. The “whip out the
unopened letter in court” scenario simply does NOT happen due to the
"discovery" process (but it may be doable on TV court).

Doing copyright by the rules is so cheap and easy when it’s
appropriate it just makes absolutely no sense to make up your own
rules and risk losing it all. Despise me if you wish but I absolutely
enjoy clinching a lesson with an after the fateful fact “I told you
so!”:slight_smile:

James E. White
Inventor, Marketer, and Author of “Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)” www.willitsell.com