Motion design is a very rapidly
growing creative field. Motion components—both high-end and low-end—are being
integrated into online projects, television programs and commercials, feature
films, games, applications and content for mobile phones and tablets, as well
as three-dimensional installations and kinetic displays in public places.
This diversity of projects has led to confusion about and inconsistency within motion design business practices
and contract terms. To add to the confusion, the work is being done by people
who come from very different professional backgrounds, bringing with them
different industry expectations.
For years, it was the norm in film
studios and television networks for motion design to be created by staff
members. Employees were trained to use specialized equipment (for example, the
Quantel Paintbox in the 1980s), and many of them were members of entertainment
unions. These unions negotiate and enforce collective bargaining agreements
that govern the hours, working conditions, minimum wages and benefits for
members employed at companies that have accepted the agreements (usually
referred to as “signatories”). Because motion design has not had its own union,
practitioners have often been members of related organizations such as IATSE
Local 839 (The Animation Guild) or IATSE Local 16 (which represents a variety
of stagehands and technicians, including many who create computer graphics).
However, a labor organizing effort is currently underway by IATSE with the
objective of forming a new union specifically for motion design and visual
On film and television projects, a
clear distinction is usually made between the production and post-production
phases. The production phase includes preparation of all live action footage,
whether it’s shot on location or in a studio. Action that will later be
combined (composited) with motion design is usually shot in front of a green
screen. The post-production phase includes all editing and the addition of
computer-generated graphics, animations and VFX. Post-production also includes
preparation of the soundtrack and the addition of title sequences and end
In the past, it was typical for
major studios to do much of their own post-production. In recent years,
however, most post-production work has shifted from in-house staff members to
outside specialists. There is now an ecosystem of specialized post-production
companies providing various services to the film and television industry, and
it must be noted that some of the smaller companies involved in motion design
blur the line between production and post-production. Creative boutiques often
say that they can shoot and edit, as well as design.
The skills required for making
feature films and television programs are directly applicable to the making of
television commercials. The traditional approach in the advertising industry
has been for agency staff to develop concepts for campaigns, and then buy production and post-production from the outside.
More recently, though, as the overall creative process has become primarily
digital, the trend is to do more of the work in-house. For strategic reasons,
digital services are becoming more fully integrated into the agency
itself—exactly the opposite of the predominant trend in film and television.
Lastly, motion design skills are
also in great demand in the game industry. Most game development studios and
publishing companies divide their workload between employees and a network of
outside talent. Projects include major releases for consoles as well as the
rapidly expanding category of casual games for smart phones.
With so many people doing so many
different things, we have to ask ourselves what, if anything do all of them
have in common? For the most part, this boils down to two important things. First, motion designers rely on a
shared set of digital tools. Although there are still some higher-end systems—such as Autodesk’s Flame, for compositing—technical advancements over the
last twenty years have brought many motion design capabilities to the desktop.
The current tool set includes applications like Adobe’s Flash and After
Effects, as well as Apple’s Motion and Final Cut Pro. The steadily decreasing
cost of equipment and software has made motion design affordable enough for
more people to incorporate it into more projects.
Second, motion designers have in
common the important legal issue of “work made for hire,” sometimes shortened
to “work for hire”. This phrase comes from U.S. copyright law. In most
instances, “work made for hire” refers to original work made by an employee
within the scope of his or her job, in which copyright ownership automatically
belongs to the employer. However, it can also refer to original work made by an
independent contractor or an outside firm, in which copyright ownership
might automatically belong to the client. This is only true if the work meets very
specific criteria: it must be specially ordered or commissioned; it must fit
within certain categories of work (motion design fits into a category which
covers work that is “part of a motion picture or other audiovisual work”); and
a written agreement to that effect must be signed by both parties. We’ll talk
more about written agreements in just a moment.
On the flip side, there are
important things that all motion designers do not have in common. Sometimes work is
provided directly to the end client, while other times it’s done behind the scenes
on a subcontract basis. Secondly, many motion designers bring with them general
business practices and expectations from the entertainment industry, while
others follow business practices from the design community. Let’s take a moment
to look at each of these essential differences more closely.
If you’re doing motion design as a
subcontractor, it means that you’re not selling your work directly to the end
client. You’ve been brought in behind the scenes to help someone else—for example,
a post-production company—with their project. In the entertainment world, the
chain of relationships looks like this: The actual client is usually a film or
television studio, or perhaps an independent production company. They own the
project, and they will receive gross percentages of all revenue that it
eventually generates. This client buys specific services from post-production
companies, such as VFX houses, usually on the basis of a fixed-fee contract.
Many post-production companies then farm out portions of the project to
independent contractors. These subcontractors are paid an hourly rate or a
daily rate. Typically, subcontracted work goes to individuals, but it can also
be done by small firms. In either case, holding the last position in this chain
of relationships does not give the subcontractor much clout or bargaining
When subcontractors are
self-employed individuals, it’s important for them to protect their legal
status as independent contractors. In the U.S., there are many differences at
both the federal and state levels between employees who are on the payroll and
outside contractors who are not. To clarify the situation and prevent
confusion, an independent contractor agreement should always be negotiated and
signed. This document is usually provided by the company buying the services.
It specifies the hourly rate or daily rate to be paid, and it indicates that
all services provided will be considered work for hire under U.S. copyright
law. The agreement is accompanied by a statement of work (usually abbreviated
as “SOW”)—an addendum that contains detailed specifications for the project. As a reference, a sample independent contractor agreement is included in my
book Talent Is Not Enough: Business Secrets For Designers. Another sample can be found in the
book Consultant and Independent Contractor Agreements, by attorney Stephen Fishman.
At the beginning of a relationship
between a post-production company and a self-employed individual, it’s a good
idea to establish some ground rules for how the subcontractor’s time will be
reserved. Involved parties should clarify the difference between tentative
holds and confirmed bookings, as well as expectations regarding payment for
on-call time and any penalties for cancellation of bookings (usually referred
to as “kill fees”). An open forum for discussion of such issues can be found at
Beyond these questions related to
scheduling, most self-employed individuals also need guidance on a wide range
of general business issues, from marketing through to billing and collecting.
This is especially true for young designers who enter the field with very
limited business experience. There are two especially useful resources for young professionals. The first is a
paperback available in most bookstores, the Graphic Artists Guild Handbook:
Pricing & Ethical Guidelines. The second is the AIGA Center for Practice Management on
AIGA.org, which includes many pertinent business articles for independent
contractors, such as “Freelancing for Design Firms and Agencies” and “Income Taxes for Freelancers.”
The opposite of subcontracting is
to sell your services directly to the end client. Sometimes this is done by
individuals, but in the field of motion design it’s more often done by firms
that are mid-sized or larger. In general, firms have a broader scale of
operations, offer a more comprehensive set of services to clients and have more
clout when it comes to bargaining. When invited to bid on a project, a firm is
often in a position to submit its own contract in the form of a fixed-fee
proposal with attached terms and conditions.
These contract terms and conditions
can vary quite a bit, based on the background of the firm submitting the
proposal. Different industries have different standard practices. The legal
expression for this is “usage of trade”: common business understandings and
practices that are well established and regularly observed within a particular
category of companies. They are usually written into the contract itself, but
even if they are not, they may still be legally enforceable. In the case of
motion design, the contrasting sets of practices seen most often are those from
the worlds of entertainment and design.
Work on film and television
projects tends to be organized into the standard production/post-production
pipeline, which is to say that the work tends to be sequential and
compartmentalized. Companies providing post-production services such as motion
design and VFX usually negotiate their portion of the project on the basis of a
fixed-fee contract plus a short list of extra items that will be billed
separately if the client later decides to include them, such as extra seconds
added to the duration of a shot. All services are provided on a work-for-hire
basis. The standard legal language used in these contracts addresses issues
related to the use of union labor and the obligations of signatories. For
example, there are union requirements and restrictions for the content of title
sequences and end credits.
A useful reference for
entertainment contract language is available to members of the Association of
Independent Commercial Producers (AICP). As the name of the organization
indicates, most AICP members are involved, to some extent, in making
commercials for ad agencies. They work in both the live and digital production
environments, and the board of directors includes professionals from leading
companies such as Digital Domain and Brand New School. The “Doing Business” section of AICP’s website has a
variety of reference documents available to members, including a standard
commercial production agreement, a digital commercial production contract and
new media licensing agreements.
A different set of business
expectations can be found in graphic and interactive design firms. In general,
design firms are accustomed to a more exploratory and iterative process, and
prefer to be involved right from the inception of a project. That is to say that
design firms tend to take an approach that is more holistic, where the workflow
is usually not organized into a tight production/post-production pipeline.
Many of today’s top motion
designers began their careers in print, and then gradually shifted from static
to kinetic projects. This involved mastering the essential film skills of
movement, sequence and narrative, as well as becoming power users of editing
In the design community, most
contracts are also in the form of fixed-fee proposals. However, if a client
later makes substantial changes, those modifications are documented with one or
more change orders. A sample set of terms and conditions for design proposals
is available here: http://www.aiga.org/standard-agreement/. This document, the AIGA
Standard Form of Agreement for Design Services, reflects current usage of trade
within the design profession. It has a modular structure. The first two
modules, “General Terms and Conditions” and “Schedule A: Intellectual Property
Provisions,” are intended for use on all projects. The three additional modules
are provided as supplements to be added to the agreement only as needed for
print projects, interactive assignments or environmental/3D projects.
This AIGA system is now being
updated to accommodate motion design. The existing intellectual property
provisions are being expanded to include a work-for-hire option. Previously,
the underlying expectation was that projects would not be work for hire.
Going forward, that will still be the case for projects unrelated to motion
design. For most traditional deliverables, it will remain standard practice for
the creative company to be recognized as the copyright holder. Necessary rights
are then licensed or assigned (transferred) to the client when full payment for
the project has been received.
Lastly, a brand new supplement is
being created with some additional provisions that are specific to motion
design deliverables, such as a warranty of compliance with the client’s
technical requirements and applicable industry standards. This new supplement
has two important underlying assumptions: that most AIGA members are not in a
union; and they are not involved in projects that require live action or
shooting on location.
If you’re a motion designer
negotiating a project, which business practices should you follow? The variety
of players and business relationships in the field today means that there is
currently no single approach that will match all situations. The above diagram
will help you sort out the differences we’ve been discussing and find the
contract terms most appropriate to your own particular circumstances.
Keep in mind this is only a
snapshot at this point in time, when the field of motion design is still quite
fragmented. A certain amount of confusion and inconsistency is unavoidable in
the near term. In the long run, however, motion design will continue to mature
as a professional service and that evolution will involve the development of
shared business practices.
Shel Perkins is a graphic designer, management consultant and educator with more than twenty years of experience in managing the operations of leading design firms in the U.S. and the U.K. He has served on the national boards of AIGA and the Association
of Professional Design Firms. He has been honored as an AIGA Fellow "in recognition of significant personal and professional contributions to raising the standards of excellence within the design community." The third edition of his best-selling book, Talent
Is Not Enough: Business Secrets For Designers, is available from New Riders.
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Visual & Graphic Design Intern (Sales & Marketing)Maxwell Health
Boston, MassachusettsApril 20 2016
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