Words Fred A. Bernstein

Don’t Just Write a Contract, Get it Signed!

When a designer comes to C. Jaye Berger, a Manhattan attorney, to find out how to get a deadbeat client to pay up, she asks if there’s a contract. Often, the answer is: “There is one, but we never got around to signing it,” which doesn’t bode well for the beleaguered designer. To win a breach of contract suit in most states, you have to have a signed agreement. An unsigned contract is nothing more than a record—and an ambiguous one at that—of what the parties thought they might agree to.

 

Berger, though, understands why contracts too often remain unsigned. What happens, she says, is that the contract negotiation gets bogged down in minutiae. The client’s attorney may have pages and pages of comments on the proposed terms, which require detailed responses; meanwhile, the client is pushing the designer to begin work. (And most designers, to their credit, would rather design than talk about the language of an arbitration clause.) But if one or both parties don’t want to sign the contract, Ms. Berger said, it may be an indication of an underlying problem in the nascent designer-client relationship. “It’s like the fear of commitment. Something is bothering someone.”

 

 

Simplify Billing

Abigail Shachat, an architectural designer, knows what that something may be. In too many cases, she says, the client wants to know the total cost of a job before signing the contract. Indeed, clients often ask Shachat to agree, in writing, that her fee will not exceed a given figure. But she avoids “not to exceed” clauses, for a reason most designers can relate to: “There’s one great unknown in a job,” she says, “and that’s the client.” Some clients change their minds incessantly, which is okay with Shachat (“I’m very patient”)—as long as she isn’t expected to foot the bill.

 

To make sure she is compensated fairly, Shachat nearly always bills by the hour, rather than as a percentage of the project cost. A straight hourly fee means there doesn’t have to be a “change order” when the project, inevitably, expands. That’s a big advantage, Shachat says, “since the process of designing is organic. If you have to stop to have a discussion every time you exceed the original scope of work, it impedes that natural process.” And there’s another reason this award-winning designer prefers charging by the hour: If she were getting a percentage of the project cost, she might find herself thinking about how much she could make by pushing a particularly expensive antique, or by cramming a lot of furniture into a room. She prefers to specify just the right piece, no matter how much—or how little—it costs. “I want to be a designer, not a furniture salesman,” Shachat says.

  

Shachat may not want to be a furniture salesman, but she is a part-time furniture designer; she often creates custom pieces for her clients. Are the designs worth trying to protect? There are three branches of intellectual property law—trademark, copyright, and patent—and none is an especially good fit for furniture. Unless you’ve designed the next Oh chair (Karim Rashid’s uniquely formed plastic ubiquity)—and a manufacturer is preparing to sell millions of them—trying to protect your design may be expensive and frustratingly ineffective.

 

 

Justice Is Expensive

If, someday, someone “quotes” your design, you can declare that imitation is the sincerest form of flattery and look the other way. That’s how the founders of Scrapile, a Brooklyn design firm known for case goods made from laminated layers of recycled wood, handled a possible knock-off. Last year, they discovered that 4Korners, another Brooklyn firm, had created a table and chest that closely resembled theirs. A design blog, Inhabitat, ran photos of the pieces side-by-side, and fans of Scrapile posted one outraged comment after another. But Scrapile’s founders, Bart Bettencourt and Carlos Salgado, had not patented the laminating process, and did not regret it—since their goal was to encourage other artisans to reuse scraps. “Scrapile has always been a labor of love,” Bettencourt responded on the blog, “and to me that is the sweetest validation.”

 

Some cases, however, are too blatant for Bettencourt’s Gandhi-esque approach. In 1994, designer Nancy Corzine, founder of the high-end furniture company that bears her name, discovered that a Florida firm was copying items like her Napoleon lounge chairs and Harlow vanity table. The showroom, Turner Greenberg Associates, wasn’t just paying homage to Corzine, it was openly trading on her name. Turner Greenberg had in fact copied pages from Corzine’s catalogue and even used her numbering system for its counterfeit products. So when Corzine sued, she had an unusually strong case. Ten years later, a federal district judge ruled that Turner Greenberg was liable for “trademark infringement, unfair competition, false designation of origin and palming off.” But that was only after Corzine had racked up more than $1 million in legal fees. Which proves two things: Protecting original designs is tricky, and you’d make a lot more money as a lawyer.