Designers do not play dice with the yachts they create. With each line they draw, with each calculation they solve, with each dream they capture, designers bring reality to the imagination of those of us who look to the seas and dream of water-borne adventures. Be they fresh out of college or venerable old men (or women) of the sea, designers are taken for granted, yet without them a yacht is a pile of steel sitting on a dock next to piles of marble and teak and a flotilla of gearboxes, engines, sails and other parts. As Charles Eames said: ‘Design is a plan for arranging elements in such a way as best to accomplish a particular purpose’.
Although great design is what Boat International celebrates, we have to remember that great designers also have to be fed. They have to invest in people, software and education. Design is a business where creativity is traded for a price, but in my experience of working with many designers, both as clients and as the sorcerers employed by my clients to conjure up their yachting fantasy, I often see that designers’ grasp on commercial reality is tenuous.
Essentially they just want to create and they hope that they will get paid for what they do and that their work will not be pillaged.
A typical designer excited by a phone call, a chance meeting from a prospective owner, will be enticed into creating a few ideas. Some will spend days looking for that flash of brilliance in the hope that this will turn into that the job that will carry their design studio for the next few years. The design is delivered and nothing more is heard. It is like that first date with a person you fell madly in love with and you are sure that it went well, but she or he never returned your call. Then you see that same person with someone else whom that prospective future love chose instead of you, and as you see your design glide down the slipway with someone else’s name attached to it, you wonder: ‘What did I do wrong?’ The answer is you did not safeguard your business. You created something as part of a pitch, but create something you did. Designers shouldn’t be so eager to shoot off a design speculatively unless they are willing for it to be taken and claimed by someone else. Why would anyone want to give away for nothing the life blood of their business? Simply sending the design to yourself by registered post and leaving the envelope sealed until your lawyer needs the proof, is a simple way of establishing who originally produced the idea.
Designers need to educate their clients on the dynamic between designer and client. The client should be asking whether the designer should or could design a yacht. He should be enquiring whether the designer has the skills and experience. But he should not be asking for a design for free.
Let us assume the client wants to formally engage a designer. The designers are keen to start immediately with the drawing and creating, and see the contractual side as an irritation. They may have a standard contract, used for years, which, when put to serious scrutiny, bears no connection with reality. I recently finished negotiating a design contract for a significant project with a designer who is a naval architect of some repute. He had without problem used his particular form of design contract many times, but when faced with this project, I was not only unsure what the client was buying from this designer, but also whether the designer knew exactly what he was delivering or his role in the project. Throughout this process the designer just wanted to get on and design and felt that the big bad lawyers (namely me!) were frustrating this.
Even if the contract is balanced, how do you stop your designs being stolen? Or guarantee that you will be paid? No contract, however good, can protect the designer from the unscrupulous owner. The owner will always be wealthier than the designer — he could always hire astute lawyers and take the fight on for much longer than a designer could ever afford both in time and money.
We have advised several designers who knew who their ‘real’ client was but were faced with a contractual client who was a brass plate in an offshore jurisdiction. Seemingly there was no direct link between the ‘client’ and the brass plate. In the good times, signing a contract with an offshore company would be kind of safe, but a malicious owner wanting to avoid paying his bills can hide behind the offshore company and indeed many have done so. The solution? Seek the personal guarantee of the human who signed you up so you can protect your payments. Protect your intellectual property and the design you produce by clearly stating in the contract who owns the intellectual property. Let the shipyard and the owner know that you own the intellectual property and that any licence that you have granted to the owner will be immediately withdrawn and that the shipyard will become a target for the designer should it continue to use unlicensed designs in the building of the yacht.
The reality is that there is always a risk in providing professional services but designers have to be tougher. It is better to have a backbone than a wishbone!