Keeping Control

As watershape designs have become more creative, more competitive and ultimately more valuable to our clients than they once were, it’s natural that we have started paying more attention to protecting our output – what some call our “intellectual property.”

This is indeed a large and important issue for many people in our business, virtually to the point where watershapers are now facing the same sorts of concerns that have preoccupied architects and landscape architects for decades. And we’ve caught up with our colleagues at a bad time: With technology being what it is now, the opportunities for fraud and the ease with which concepts can be stolen or otherwise misappropriated is now only a “click and drag” away.

For most of us who came to watershaping through the pool industry, this sense of a need to protect our designs is relatively new. In fact, when I started out in the pool-building business many years ago, I was one of those who designed pools strictly as a means of selling construction jobs. The design work I did, which was occasionally sophisticated relative to what others were doing back then, was just a sales tool – and the idea that design work had intrinsic value was an utterly foreign concept.

MERIT BASIS

I’m thankful that the practice of giving away design work is largely a thing of the past among watershapers. I know there are some of you who still do it, and I suppose it makes sense for volume-oriented businesses that meet their needs by building with the same templates over and over again with perhaps a small number of variations. In such cases, giving designs away may have merit if only because they involve little original work once the production wheels start turning.

For anyone who works with custom watershapes, however, I’d argue that there is no upside to giving away designs. In fact, there are multiple downsides to handing over your ideas without any expectation of compensation – the chief being that if you’re not paid for your design work, there is absolutely no way you can protect the products of your own creativity.

I’ve pounded this charge-for-designs drum for years now, and I have no plans to stop: If you’re designing watershapes (or, for that matter, landscapes or any other types of structures or elements for exterior environments), you should be compensated for that effort. And this belief, of course, goes hand in hand with the notion that those who demand payment for designs should know what they’re doing and that their work should actually have merit.

If you’re in a position where you don’t know what you’re doing, you should not be designing watershapes and should instead retain or collaborate with someone who’s qualified until by dint of experience you’ve established your own credentials. In fact, there’s nothing wrong with that approach on any level: All it takes is a willingness to pay a designer for his or her efforts and give credit where it’s due.

Indeed, this whole swirl of intellectual-property issues boils down to those two things: fair compensation and proper credit.

I’m asked about these issues with increasing frequency these days, and of course what most people are looking for is some sort of categorical, chapter-and-verse legal definition from me. Yes, there are attorneys and copyright/trademark experts out there who can run down the myriad technicalities involved in determining the nature and extent of intellectual property, but I’ve rarely consulted with them because I have the sense that getting wrapped up in the niceties of the law is ultimately a limiting and even self-defeating endeavor.

Instead, I use a simple, one-page design contract that indicates my retainer, the scope of work, hourly design fees and fees for travel and site visits along with a rough projection of the cost. In proffering this document, I make it very clear – and this is crucial – that they won’t receive my work until I’m paid for it. It’s really as simple as that.

I know people (including my Genesis 3 partner Skip Phillips) who use far more complex contracts and include information about payment terms, legal fees, work stoppage, arbitration and much more. That’s all fine and our documentation may look completely different, but the protective principle remains exactly the same: Charge for your work and be sure you get paid before it leaves your office!

WHY FIGHT?

I’m so adamant about “payment before presentation” because I know that if I submit my work to a client before I receive a check, I expose myself to the very real possibility of my work being taken by someone else who claims it as his or her own and uses it to build a project.

That’s a worst-case scenario, of course, but it can happen – although what occurs more commonly is that clients won’t meet their obligations and hold up payments. Most of the time, happily, they come through, but we’ve all heard stories.

If a client takes advantage of you in this way, of course, you have legal recourse regardless of how detailed your written contract is. In fact, you’d have that same recourse without any written contract at all because verbal agreements are binding in court. So when anyone steals your work and doesn’t pay you for it as agreed, you never have to give up your right to pursue the matter in court and seek full compensation.

The problem with such situations is that you have to go through the process, expense and mind-numbing hassle of engaging in a court battle – not the way I prefer to spend my time. So I don’t even start the design process on any sort of legal-leaning foundation: I simply won’t present my work until I’m paid for it, up front.

Mine is a design-only firm, so once we’re compensated for our work, the client owns the design and they can use it to obtain bids for construction, hang it on their wall or throw it away and start over with us or a different designer. If yours is a design/build business, once you get paid for the design and the client takes possession of it, there’s always the possibility that you might be underbid and someone else will build your design. As I see it, you come out well because you were at least paid for your design time!

In that sense, design work should be seen as a separate activity from construction. Sure, you can set up things so that if you prepare a design and the client subsequently has you build the project, you can discount the design fee to whatever extent you desire. That’s up to you, but the point remains that you should be paid in full for the creative/intellectual part of the process.

Before I move on, let me make an important point about using your instincts. I’m utterly averse to anything that involves courtrooms and attorneys, so I’ve developed a reflexive, red-flag reaction to people who seem overly concerned with legal issues at the outset of a project. I respect anyone’s right to do their homework on my background and see due diligence as important, but when a prospective client shows up at an initial meeting with an attorney in tow or makes it clear attorneys will be involved when it’s not really necessary, I think twice about moving forward with any work at all.

It’s a judgment call, but I’ve grown weary of dealing with people who see the courts as their way to resolve problems. And this cautious approach has worked well for me: I’ve only become involved in legal proceedings twice in my career – both times as the initiator – and that’s just fine by me.

DUE CREDIT

As mentioned above, there’s a major component of this discussion of intellectual property that goes beyond compensation and has to do with credit for and proper attribution of work performed.

I’ve become aware of a number of recent situations in which watershapers I know are having their work stolen and claimed by others. In fact, there was just an incident where a company put up a Web site filled with projects claimed as its own when in fact the work had actually been done by several Genesis 3 members.

Not only was this company claiming credit for another individual’s work (which happens pretty often), but this one was brazenly claiming credit for several professionals’ creative output. It’s outrageous, but in this day and age, it’s so easy to cut and paste pictures, scan documents and pick up information from the Internet (and then rely on obscurity to hide yourself) that this sort of blatant plagiarism is just too much for some unscrupulous louts to resist.

Again, intellectual property law is complex and I’m not an attorney, so rather than look at this issue in hard, legalistic terms, my tendency is to look for practical responses.

For starters, there are some things we all can do to make it difficult for people to steal images of our work: We can, for example, imbed logos or watermarks in our photographs that will require a discouraging amount of work for the typical plagiarist to hide. And there are also technologies that can be used to track the digital signature of images as they move around the Internet, making it harder for thieves to get away with their crimes.

Making these operations cease and desist can sometimes involve litigation, but my experience has been that simply calling these criminals out and insisting that they stop is all it takes in most cases. After all, it would take an almost sociopathic load of brass for anyone to claim work that doesn’t belong to him or her to maintain a lie when confronted by the design’s true source.

Taken from the opposite angle, there will be situations where these low-life scoundrels will get away with it for a while, but I say this to them: If you play this game for long, you’ll eventually get caught and your reputation will suffer because clients will be slow to forgive if they discover you’ve misrepresented your qualifications. Further, there’s the even more basic point that if you show off a photo of a David Tisherman project of a pool cantilevered off a mountainside and claim it as your own (and assuming you throw a good enough line of bull to land the job), there could come the rueful day when you might actually be called on, with no relevant experience, to build such a project.

My hunch is, if you’re the sort of person who cuts these kinds of corners with the truth, there’s a high degree of probability that you won’t be in possession of the skills or the mettle required to pull off such a task. In other words, your goose will be cooked one way or another and you’ll have no one to blame but yourself – so don’t do it!

SHARED CONCEPTS

As is true in just about any discussion of creative processes and beyond cases in which one person’s work is flatly stolen by someone else, there are instances where shades of gray creep into the picture.

In many cases, for example, designs for custom watershapes are the result of the input of more than one person. Who should get credit? Is it the architect who came up with the general concept? The landscape architect who refined or changed that original idea? Or the watershape designer who fleshed out the skeleton of the program with engineering and construction details as well as materials and finish selections?

The answer, I believe, is “all of the above.” I am a firm believer in spreading credit wherever it is deserved. In fact, I believe that when we as watershapers share credit in this way, we make strong statements about our ability to work on teams. As an added bonus, our ability to cite collaborations with well-known or otherwise accomplished professionals confers credibility on us.

Just as I think it’s fine to borrow a modicum of credibility from those with whom we’ve worked, I also see no problem in using the work of others as a means of brainstorming with clients so long as I am completely open and aboveboard about the fact that what they’re seeing is someone else’s work.

As a class of designers, watershapers are doing great projects these days, and I’m proud to share my best work while also showing off the output of my finest colleagues. In doing so, I run the slight risk of having my clients jump ship and pursue those other designers, but it doesn’t bother me because I know in making the move, they’ll be in good hands. And as a matter of fact, this has never happened.

Finally, and along these same lines, I think it behooves us all to be completely honest about our backgrounds and education. As I see it, over- or misstating your qualifications is another way of taking credit that isn’t due. To that point, I’m the first to admit that I did not attend college and have little formal education. When people ask me about my history, I tell them I attended the school of hard knocks and came up in the industry via back roads.

I admire well-educated people and have always supported the notion that education is of the utmost value. I’ve done my level best to catch up where I can by taking classes, traveling and reading books on relevant subjects and have taken all of the required courses to attain Society of Watershape Designers accreditation (indeed, I found this water-focused curriculum to be more relevant and more valuable than the few college courses I have taken). But I also believe that, ultimately, experience is the greatest credential we can have and take pride in the watershapes I’ve designed, in the value people place on my work and in the great feedback I get from those who own or visit my projects.

Perhaps I’m an idealist, but I think if some people spent more time improving their game and less time finding ways to cut corners, then discussions such as this one would be unnecessary. In the meantime, however, I keep my eyes and ears open, protect myself the best I can and urge others to have zero tolerance for those who demean our profession by misrepresenting who they are and what they can do.

Brian Van Bower runs Aquatic Consultants, a design firm based in Miami, Fla., and is a co-founder of the Genesis 3 Design Group; dedicated to top-of-the-line performance in aquatic design and construction, this organization conducts schools for like-minded pool designers and builders. He can be reached at [email protected].