Addressing ethics in the water shaping industry

by jason_cramp | November 21, 2015 9:30 am

By Barry Justus

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Information, photos, graphics, and designs are not a free for all. Despite this, many pool designers/builders may have experienced some form of theft with respect to their intellectual property. Generally, an original work is automatically protected by copyright the moment it is created. By registering the copyright, a designer/builder will receive a certificate issued by the Canadian Intellectual Property Office that can be used in court as evidence to prove ownership.

Once registered, the copyright exists in Canada during the lifetime of the copyright holder and for 50 years following their death. After which, the work falls into the public domain and anyone can use it. This is true for most work, but there are exceptions[2].

Despite copyright laws, the Internet can be the Wild West of the design world, especially when it comes to piracy of photos, designs, and content. To be clear, it is not fair or ethical, not to mention, legal, to portray someone else’s work as if it were their own.

Photo theft

Unfortunately, photo theft is seemingly common in the pool and spa/hot tub industry, particularly with some companies posting images of projects they did not design or build. A potential giveaway, for example, might be a builder who specializes in vinyl pools posting pictures of tiled pools on their homepage. Another example might be images of pools that do not necessarily match the style of the builder’s other projects. That said, it is possible to purchase stock photos of pools and own the copyright, but this practice is misleading.

There is an obvious solution to this problem, however. Companies that have not designed or built a particular project should not post the work on their websites or use it in their promotional and/or marketing materials.

Many in the pool and spa/hot tub industry started their businesses from scratch and have worked hard to perfect their trade. Therefore, those in the industry should not misrepresent their abilities to potential customers by piggybacking off of another company’s work.

By searching some of the following websites, pool designers/builders may be able to find out if their intellectual property has, in fact, been stolen:

• Google image search (some may be amazed at what they find by simply right-clicking on an image);
• www.tineye.com[3];
• www.imageraider.com[4];
• www.imgseek.com[5]; and
• www.revIMG.com[6].

How can photos be protected?

1. [7]

   Use a watermark.

• www.picmarkr.com[8];
• www.watermark-images.com[9];
• www.umarkonline.com[10];
• Conceal the company logo or website in the photo; and
• Do not use language that is threatening or aggressive in the watermark.

Nothing is fool proof. Some argue against water-marking photos, as it ruins the look of the image. Further, someone who really wants to use the photo and has some general Photoshop knowledge can remove it.

2. Low-resolution images.

Only post photos that are low resolution (72 dots per inch [dpi] that look good on a website, but blurry when printed). Another advantage to using low-resolution images is the fact the file size is also smaller, which will allow a company’s website to load faster.

3. Low-tech options

A low-tech option is to load project images, along with the company’s logo, into a Microsoft PowerPoint presentation. Afterwards, the low-resolution images can be e-mailed to potential clients without fear, as the logo cannot be removed.

4. Website techniques

There are also a few techniques a website developer can use to protect photos. For example, a developer can disable the ability to right-click on the image, manipulate images by uploading them without a colour profile, and prevent image downloads by using tables. It really depends on how much effort a designer/builder wants to take, and whether the consequences are worth the precautionary measures.

What to do if photos are being used without permission?

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First, a designer/builder must verify without doubt it is their photo that is being used without their permission. This is pretty straightforward, it is either a picture of a pool the company designed and built, or it is not.

If the photo is being used without permission, contact the website with the pirated image(s). There should be a ‘contact us’ page, if not, use a domain search website (e.g. www.who.is) to look up the domain and IP owner information.

After obtaining this information, send a form letter to the domain owner stating the website
is using copyrighted materials and request the following to occur:

• Remove the said copyrighted image(s);
• Pay for rights for the photo(s); and
• Give credit for the photo(s).

A designer/builder can also contact the webhost to make them aware of the copyright material(s) that are being used, stating the Digital Millennium Copyright Act[12] (DMCA). Finally, legal action, which is not to be taken lightly, is another route. A simple letter from the designer’s/builder’s lawyer is usually enough.

There is a grey area here, however. Should a designer, contractor, builder, or subcontractor take their ‘own’ photo of a project that is not their work, this can be hard to find. The options provided above can be used to try to locate these images, in addition to having everyone working on-site sign a non-disclosure agreement (NDA) or confidentiality agreement (CA). In this author’s experience, however, these are almost impossible to enforce as today everyone has a digital camera on their phone.

Self-policing

• Occasionally look at competitor’s websites;
• Be wary if websites have photos that are seemingly out of place; and
• If work belonging to another designer/builder has potentially been pirated on another website, let them know as they may return the favour.

Be ethical

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All designers/builders should keep high standards when it comes to their websites and promotional materials. Integrity is “doing the right thing even if no one else will know.”

Another grey area is the difference between giving credit and taking credit, as it can be very complex. Some large projects can be quite elaborate, involving several designers and requiring many different tradespeople on-site. In some cases, a project may start with an overall concept, then the design is paid for, but the client moves on.

In this case, the waters get muddy when a new designer takes over and potentially changes or modifies the design. The problem then becomes who gets credit for the project? Common sense should prevail, but often it does not. This scenario can potentially present a number of questions for designers/builders:

• Can the original designer take credit and take photos of the finished project?
• Does a minor player in a project have the right to photograph and publish a finished project?
• Does the designer get credit or the contractor? Or, should both get credit?
• What happens when a simple pool is installed in an elaborate landscape?
• What happens when an elaborate pool is installed in a simple landscape?
• What is more relevant—a highly technical design or a highly technical installation?
• Can a designer claim credit for a particular project without ever stepping foot on-site during construction?
• Does someone need to know how to build a pool in order to design one?

Who can be considered a designer?

Most professions control who can use certain designations (e.g. doctors, landscape architects, architects, interior designers, accountants, engineers, etc.); however, it is seemingly common for most pool builders websites to include a section on design.

Landscape architects and architects are highly skilled at spatial distribution, balance, and form and function. However, some do not have formal training in the nuances of pool, spa, and water feature design. There are very few outlets for professional design instruction in the water shaping industry; therefore, installing a templated pool into a landscaped property should not qualify as design. Further, those who do not have education, formal training, or any credentials in aquatic design should not be considered a pool designer, as this can potentially mislead customers.

Referencing

Skip Phillips, owner/founder, Questar Pools and co-founder of Genesis

“The problem with giving proper credit in this industry has been pervasive. There was a time when design award programs specifically excluded proper designer identification to bolster the myth the builder was the source of the design intellect. The solution is simple: if you are the sole source of the design, say it; if you shared the design process with someone else, say that too; and if you are the low-bidder on someone’s intellectual property, tell the truth—it is not your work. This also includes lifting other firms’ images to beef up your portfolio. I was recently paid a settlement of US$10,000 by an unscrupulous landscaper that claimed my design was his because he put in the sprinklers and plants. It was an expensive lesson!”

All pool designers/builders are potentially guilty of referencing. Similar concepts come up in designs over the years, while trends come and go, classic design elements always work. However, this does not mean all pool designers/builders are stealing from the Greeks, Romans, and Turks, who built some of the first pools more than 5000 years ago.

Instead, this is where ethics come into play. Keeping a scrapbook of inspirational projects and designs is considered fair—portraying the design to potential clients as original work is not. There is no fine line here, as all industry professionals should know the difference. If this were the case, the industry would only see one vanishing-edge pool, one perimeter-overflow pool, and one shallow-lounging area.

Starting a pool design with a clean sheet and creating something out of nothing is the only way to go. In some cases, designers/builders can be restricted to specific client requests, other designs, setbacks, grade restrictions, lot coverage, environmental concerns, and soil conditions. Despite this, there are some truly innovative designers/builders who continue to lead the pack and continually break new ground.

Client theft

Brian Van Bower, president, Aquatic Consultants Inc., and co-founder of Genesis

“When it comes to project photos, it amazes me that people can steal something and not feel they are doing anything wrong. I recently got an e-mail from a friend, who is familiar with our work, asking if I had seen company XYZ’s website, or if I had a working relationship with them, as he thought the images looked like our projects. I did not know the company and we immediately went to their website. We were shocked to see all of the images on the site were ours. I immediately sent an e-mail asking them to cease and desist using any of our images. They called me back to say they had given us credit for designing these projects and that, to them, seemed to make it alright. The fact is, I didn’t know them and they had nothing to do with the projects—even though it would appear otherwise to a casual observer. They were not ashamed because they stated they wanted to work with our company on future project collaborations, the absurdity of which escaped them. “Unlike some, they did remove the pictures from their website right away. I greatly value my personal integrity too much to try to entice clients on the back of someone else’s work. Starting a business relationship based on misrepresentation is wrong. We often work on collaborative projects and, since we only provide design services these days, I always try to give credit to the architect, landscape architect, or pool builder in print and online. It’s only fair.”

Some builders may have even had their designs and intellectual property taken by a client. Even if a design is sold, the designer still retains ownership.

A client who solicits a designer to discuss a particular project, but then uses the free design to start a bidding war is where this can potentially become unethical.

Another potential grey area in terms of ethics is reviewing another builder’s design and/or project pricing, as normally no two builders are bidding on the exact same design, materials, build technique, or equipment package.

One way to possibly prevent this is to ask the client to sign a non-disclosure agreement and/or charge them for time and the design; however, this is a personal choice that should be based on the company’s market, construction abilities, and relationship with the client.

Intellectual property theft is an age-old problem. The advent of the Internet and the ease of which digital media can be manipulated has made this issue much more pervasive and more public in nature.

While it may be impossible to control the spread of pirated photos and designs on the Internet, there are a number of tools mentioned in this article a designer/builder could potentially use to protect their intellectual property. These methods are particularly effective within the industry, where it really matters, when dealing with unethical competitors. The vast majority of contractors and designers are ethically sound, have a firm moral compass, and play by the industry’s undefined rules; unfortunately, there still seems to be a small minority who think they can get away with it.

[14]Barry Justus, SWD, is the owner of Poolscape Inc., and Justus International Consulting. He is an international lecturer and author of more than 40 articles on pool design and construction. Justus is also a fellow of the Society of Watershape Designers (SWD) and a member of Pool & Spa Marketing’s editorial advisory board (EAB). More than 90 per cent of his projects designed and built over the last decade have won a national or international award. He can be reached via e-mail at barry@poolscape.com[15].

 

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