Carol Mackay of Mackay Branson design: a veteran graphic designer with vast experience in the alternative dispute and courts sectors.
As well as Ombudsman schemes, clients include the County, Magistrates’ and Supreme Court of Victoria and VCAT. I have long relationships with most clients – for example 2016 is the 20th year I’ve produced the Telecommunications Industry Ombudsman Annual Report. I’ve produced the Supreme Court’s Annual Report since 2008.
The Magistrates’ Court of Victoria.
Mackay Branson design produced the 2012-13 Magistrates’ Court of Victoria Annual Report and the following year returned to produce the 2013-14 Annual Report.
The report was estimated upfront and, as with most projects, incorporated an ‘authors amendments’ allowance based on previous years (10 hours). During the project I emailed my contact to say we were fast approaching the end of that allocation. (In my experience, this report had an extraordinary number of corrections – my files show that I had done eight rounds of extensive, detailed ACs at that point and the amount of corrections was not waning, in fact, there was no end in sight.)
Shortly after the email, the client called to say there was no more budget and asked if I would supply the Indesign file because they knew Indesign and could do final amendments in-house.
After much consideration I agreed, and handed over my file.
Now before designers everywhere throw their hands up in the air in moral outrage, think about the facts:
• this is a potentially a long term client in a client segment I know well
• the client is a Victoria Government Court – what could go wrong?
• InCopy is a solution but this was not the time to introduce new software
• there is no more money – so I could either a) walk away from a 95% finished project, b) do the corrections at no cost or c) handover the file.
I handed over my Indesign file in good faith to help a client with a budget crisis. I said that on the phone and then I reiterated those thoughts in an email.
The client made amendments and returned the file so I could change graphs/charts they were unable to do and then prep the file for handover to Finsbury, the Government appointed printer. In fact, we did that twice as late corrections came in, and then I did another round of corrections post-production and before sending it to print again.
At the end of the project, I received this email from the clients:
Thank-you very much for all your help and hard work over the last eight months.
Hope that you have a fantastic Christmas and xxx and I look forward to working with you again in the future.
Fast forward 6 months:
I emailed my contacts mid year 2015 to ask if I could be of service for that year’s report. Radio silence.
I tried again a week or so later, and after no response to a voicemail I assumed they were proceeding with another supplier. I was disappointed but experienced enough to know that happens.
Curious, I searched online to see if a 2014-15 Magistrates Court Annual Report has been uploaded.
It has, and it’s obvious that it’s built using my Indesign file.
Only the cover has been changed.
You can view both here.
This is my understanding of the situation:
At no time did my clients suggest the possibility my files may be used for future publications, in fact I explained to them verbally (when asked for the files) and in writing (when I sent the files) that it was highly unusual for me to handover my native file but I viewed this as a special case to help their budget dilemma.
My estimate of costs states that copyright of the design and artwork is transferred at payment but my understanding is that artwork is a print-ready PDF, not native software files (which form part of Mackay Branson design’s intellectual property).
My understanding is that the files would not be used for anything but for the completion of the 2013/14 Annual Report – as stated in their contract I signed.
DIY dispute resolution:
I am an expert in alternative dispute resolution. You don’t work for ombudsman schemes for 20 years without getting the gist of the process. I was sure this is a misunderstanding that would be easily rectified.
So, I tried to resolve the complaint:
- two (friendly) unreturned phone calls to my client’s voice mail.
The first call just asked for an explanation.
The second call acknowledged she was very busy but said I think we need to discuss the matter and that I would email and put my concerns in writing.
- three emails to my client.
The first email outlined my understanding of the situation – no reply.
I cc’d another contact into the second email incase I was going into the junk mail, and I attached an invoice outlining a (moderate) cost for using my design for a second year. To that I received a brief response stating they did not think they had infringed on my copyright and besides, here’s a copy of the contract you signed.
I cc’d in the head of the organisation into a third email where I explained why the contract was only relevant for the 2013/14 financial year.
• I attempted to link in to the head of the organisation but didn’t get a reply.
By bringing in a third party negotiator.
- The administration of all Victorian Courts are overseen by Court Services Victoria. Early in the dispute I contacted a person that I thought might be able to have a friendly word to my client suggesting that we meet and resolve the situation. The reply to my long email outlining my understanding of the situation was a one line email stating it was inappropriate for her to get involved.
This is my client’s response:
A letter from the Acting Manager of Legal and Executive Services of Court Services Victoria arrived via snail mail.
The bulk of the two page letter is a copy of the Intellectual Property Rights section of the contract I signed. The letter confirms that my claim for copyright infringement is not accepted and my invoice will not be paid.
Here’s what I think:
I believe the Magistrates’ Court of Victoria is confused about the distinction between copyright/intellectual property of the design and copyright/intellectual property of the native files.
Here’s who I have contacted that did understand the distinction:
- Ombudsman Victoria – but as it is a ‘contractual dispute’ it is outside their jurisdiction. They suggested I contact a lawyer – see below.
- Public Sector Standards Commissioner – the Magistrates’ Court is also outside their jurisdiction – they suggested VCAT.
- A prominent journalist with a network of media contacts.
- Senior personnel at other Ombudsman schemes (colleagues).
- Other clients.
Here’s who I contacted but am yet to receive a reply:
- Finn Roache, one of AGDA’s ‘partners’. In our very brief conversation, Dan was concerned I didn’t understand the value of Terms and Conditions. He failed to understand that the Victorian Government has their own T&C’s that in a paper, stone, scissors type of way, will always win. He’s getting back to me on a strategy. At least he said he will. Two weeks and two unreturned emails later, I’m unsure when that might be.
- Dispute Resolution Officer at Magistrates’ Court of Victoria (feedback@…).
Where to from here:
I’ve probably taken it as far as I can with the Magistrates’ Court, and it’s no longer about the money – the hours I have spent outweigh the hourly rate return.
My MO is now broadcasting the Victorian Government’s hypocrisy.
The Creative Victoria website quotes Peter Handsaker, Creative Victoria’s senior manager of design policy and programs:
Victoria doesn’t have a shortage of talented designers and highly professional design consultancies; it has a shortage of informed and sophisticated customers for design.
The best way to insure the continued growth and prosperity of Victoria’s estimated 4,200 plus design consultancies, and to improve employment and career opportunities for designers both in the creative industries and in other sectors across the economy, is to increase the number and percentage of Victorian businesses that use design strategically to compete.
This thinking is obviously not shared by government departments who actively work to reduce the value that designers get from their work.
Furthermore the Creative Victoria website states:
There are areas where the government is already taking action to support businesses, including in the creative industries. LaunchVic will work in partnership with entrepreneurs, industry, businesses, the community and our educational institutions to strengthen Victoria’s startup and entrepreneurial ecosystem. For independent operators and small businesses, there are Small Business Workshops, Small Business Mentoring and Grow Your Business to help business owners make strategic decisions, improve management skills and develop businesses.
The Government can espouse their support for designers all they like but until they acknowledge the ongoing value of designer’s IP and pay for it, this situation will happen again.
What I would like:
I would like all Government departments to acknowledge the ongoing value of designer’s IP and to pay for it.
I would like all Victorian designers to email this URL (using the title MBd vs Magistrates Court) to the Hon Martin Pakula, Attorney General, Victoria. firstname.lastname@example.org.
Let’s see if we can make a difference.
The more voices, the louder the argument.
Feel free to cc me in. 😉
September 2016 … a result:
My dispute with the Magistrates’ Court of Victoria has been resolved.
It was resolved after meeting – not with my clients, but with a lawyer representing the Magistrates Court of Victoria. As always, putting a face to a dispute helps diffuse the situation, so for that I am grateful.
We agreed to disagree. I still strongly feel that I did not assign copyright to MCV and they feel just as strongly that their contract clearly states that they do.
That said, MCV have agreed to pay the additional design fee for using my design without my knowledge, and they have also agreed not to use the design ongoing. A good result.
The moral to my story? Read a contract carefully. In my case I missed that a sub clause in section 8 had changed between the two years that I was commissioned to produce the report.
I have been contacted by a variety of IP lawyers (interestingly not AGDA’s) that have all been confident they would have won the case — including one that feels strongly that the contract did not define Contract IP – but I never wanted to fight this through the courts. Instead, I think we should be fighting for the contract to be changed at the source – our Government.
Carol is the owner of Mackay Branson, a design studio currently celebrating 31 years in business. Her expertise is in the use of design to package complex content into bite-sized chunks of information that are easy to understand and digest. She does that with clients in the corporate, cultural, government and not-for-profit sectors. More at mbdesign.com.au.
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