[Hidden-tech] agreement to protect website ?

Todd M. LeMieux (413) 747-9321 todd at toddlemieux.com
Wed Dec 14 09:28:41 EST 2011


Contracts should be fair and negotiated; certainly not all work 
agreements need to be work for hire.

For a client to simply have access to their website is NOT creative 
content that is protected my copyright or rights transfer. It's 
technical information that yes, should be provided. And it should be in 
the contract. My experience is that too many business are willing to 
operate without contracts, which often leads to misunderstanding. Or, 
they overreach with work for hire agreements.

Many of us here on Hidden Tech are independent contractors, freelancers, 
use whatever term applies. Turn it around: would YOU be willing to sign 
a work for hire for every job you do? For every site you code? Are there 
not pieces of code you use over and over on various sites? Would you 
want to be contractually forbidden from reusing that code?

Sometimes work for hire is appropriate, but most times it's a blanket, 
over-reaching rights grab. Too many people don't understand copyright 
and rights transfers. They assume that simply paying for something means 
they own it.

As a board member and member of both the American Institute of Graphic 
Arts and the Graphic Artists Guild, work for hire is considered 
unethical, unless you are an EMPLOYEE (which, as stated here: 
http://www.stopworkforhire.com/site2/what-is-work-for-hire/ comes with 
additional compensation in the form of benefits, etc. that employees vs. 
independent contractors get for being an employee).

Regards,
Todd


On 12/14/11 12:31 AM, Maria Korolov Trombly wrote:
> Don --
>
> I'm with you 100%. All my freelancers have to sign work-for-hire 
> contracts -- because all my clients insist on them. And for good 
> reason. We do custom work, based on customer requirements, and if we 
> sold the same exact work somewhere else, the first customer would be 
> damaged by it.
>
> If I wrote the next Harry Potter, of course, and a publisher insisted 
> on getting all the rights -- that's a warning sign. There's no good 
> reason for a publisher (or agent, or anyone else) to get those kind of 
> rights unless they planned on hiring other writers to continue to 
> series if they got tired of me. In those cases, you can sell just the 
> rights that they need -- first North American publication rights, 
> audiobook rights, etc... Each industry has its own way of subdividing 
> rights -- and there's no reason why you can't create a new one, if 
> your particular case is unique.
>
> But, in general, the party that should have all the rights is the one 
> that will have the most use for the rights after the initial contract 
> is over.
>
> So companies should make sure to buy the rights to their logos, 
> custom-made software code, promotional materials, Web content, etc... 
> and creators should retain the rights for work they plan to resell 
> later, or build upon.
>
> The key thing to remember is that, by default, the creators have the 
> edge. Unless it's specifically spelled out, all the buyer gets is 
> one-time rights (for articles, for example, its first North American 
> publication rights).  All other rights belong to the creator.
>
> - Maria
>
>
>
> Maria Trombly Twitter headshot.jpg
> 	____________________________________________________
> Maria Korolov •  508-443-1130 • maria at tromblyinternational.com 
> <mailto:maria at tromblyinternational.com>
> President, *Trombly International 
> <http://www.tromblyinternational.com/>* • COO, *China Speakers Bureau*
> <http://www.china-speakers-bureau.com/>Editor & Publisher, *Hypergrid 
> Business* <http://www.hypergridbusiness.com/>
>
>
>
>
> On Tue, Dec 13, 2011 at 10:49 PM, Don Lesser <dlesser at ptraining.com 
> <mailto:dlesser at ptraining.com>> wrote:
>
>     I personally would not hire any independent contractor who did not
>     agree to a work for hire. Otherwise, anything that person did
>     would not belong to the client who paid for it and who could be
>     held hostage at any time s/he needed a copy of the graphic or a
>     change made to the code. We have been called in to recreate Access
>     front ends for clients whose programmer moved to Italy. I have
>     been involved in trying to get passwords from network engineers. I
>     have heard of business owners discovering they do not own the
>     logos they had designed for their business; logos for which they
>     have paid. At this point in my business, I would refuse to work
>     with any contractor who who insisted that s/he owns the work s/he
>     has been paid for.
>
>     In every job we do, once the client accepts the work and pays for
>     it, it belongs to the client. The client gets fully modifiable
>     source code. We do not retain administrative passwords the client
>     is not privy to. We do not maintain any ownership of a client's
>     domain.
>
>     We do retain the rights to reuse portions of any code we have
>     developed or algorithms we create in other, non-competing works.
>     We agree not to reuse the work in its entirety or to resell it
>     intact to another client. We agree that the work may be used in a
>     portfolio as long as it is not transferred to the potential client
>     in its entirety. I have never had a client refuse these
>     conditions, except to insist that data not be included or that it
>     not be shown to potential or actual competitors.
>
>     I have never been offered a lower rate for the programmer
>     retaining rights to the work. I know that graphics designers, at
>     least in previous decades, believed they owned their work, which I
>     always found hard to understand. Perhaps I am misunderstanding the
>     message below and if so, I do apologize. As you can tell, I do
>     have strong feelings about the subject.
>
>
>     -------- Original Message --------
>     > From: "Todd M. LeMieux (413) 747-9321
>     <tel:%28413%29%20747-9321>" <todd at toddlemieux.com
>     <mailto:todd at toddlemieux.com>>
>     > Sent: Tuesday, December 13, 2011 9:51 PM
>     > To: "Maria Korolov Trombly" <maria at tromblyinternational.com
>     <mailto:maria at tromblyinternational.com>>
>     > Subject: Re: [Hidden-tech] agreement to protect website ?
>     >
>     > ** Be sure to fill out the survey/skills inventory in the
>     member's area.
>     >    ** If you did, we all thank you.
>     >
>     >
>     >
>     > Work for hire is typically frowned upon by independent contractors;
>     > rights transfers and usage rights should really be negotiated on
>     a case
>     > by case or project by project basis.
>     >
>     > When work for hire is the arrangement, a client should expect to
>     pay a
>     > significantly higher fee for the rights grab that work for hire
>     > essentially is.
>     >
>     > There are several helpful definitions and explanations of various
>     > contract negotiation and copyright terms here:
>     >
>     >
>     https://www.graphicartistsguild.org/resources/contract-monitor/contract-glossary/
>     >
>     > And much more information here:
>     >
>     > http://www.stopworkforhire.com/site2/what-is-work-for-hire/
>     >
>     > Best,
>     > Todd
>     >
>     >
>     >
>     > On 12/13/11 11:02 AM, Maria Korolov Trombly wrote:
>     > >     ** Be sure to fill out the survey/skills inventory in the
>     member's area.
>     > >     ** If you did, we all thank you.
>     > >
>     > >
>     > >
>     > >
>     > > Mark, Margot --
>     > >
>     > > If the developer does any creative work at all -- design, writing,
>     > > coding, etc... -- have them sign a "work for hire" agreement under
>     > > which all creative rights belong to you.
>     > >
>     > > This should be a standard part of any vendor agreement you
>     have. For
>     > > example, if you hire someone to design your corporate logo, by
>     > > default, the copyright to that logo will belong to them --
>     unless they
>     > > sign it over to you. A "work for hire" agreement means that the
>     > > copyright is owned by the person who paid for it.
>     > >
>     > > If you are dealing with contractors overseas, you should add
>     something
>     > > like, "In jurisdictions where work for hire does not apply,
>     the vendor
>     > > assigns all rights to the purchaser." In an "all rights"
>     contract the
>     > > vendor originally has the copyright -- but then turns the
>     whole thing
>     > > over to the buyer. In a "work for hire" contract the vendor
>     never gets
>     > > these rights in the first place. Not really a huge difference
>     > > practically, but as someone buying creative work, you want the
>     > > strongest possible language on your side.
>     > >
>     > > If the work you're getting has source files -- original
>     drawings that
>     > > the artist scanned in to create your logo, interviews with your
>     > > customers that a copywriter did for your website, source code
>     in the
>     > > case of computer programs -- you would want to get those source
>     > > materials as well, in case you have to switch vendors --
>     having the
>     > > source materials can make it easier for the next guy to do
>     their work.
>     > >
>     > > A contract doesn't have to be long -- a paragraph with everyone's
>     > > signatures is enough. But it's also a good opportunity to
>     spell out
>     > > deliverables, completion dates, cost of follow-up services, etc...
>     > >
>     > > - Maria
>     > >
>     > >
>     > >
>     > > Maria Trombly Twitter headshot.jpg
>     > >     ____________________________________________________
>     > > Maria Korolov . 508-443-1130 <tel:508-443-1130> .
>     maria at tromblyinternational.com <mailto:maria at tromblyinternational.com>
>     > > <mailto:maria at tromblyinternational.com
>     <mailto:maria at tromblyinternational.com>>
>     > > President, *Trombly International
>     > > <http://www.tromblyinternational.com/>* . COO, *China Speakers
>     Bureau*
>     > > <http://www.china-speakers-bureau.com/>Editor & Publisher,
>     *Hypergrid
>     > > Business* <http://www.hypergridbusiness.com/>
>     > >
>     > >
>     > >
>     > >
>     > > On Tue, Dec 13, 2011 at 7:43 AM, Mark Firehammer
>     > > <mark at techeffective.net <mailto:mark at techeffective.net>
>     <mailto:mark at techeffective.net <mailto:mark at techeffective.net>>>
>     wrote:
>     > >
>     > >       ** Be sure to fill out the survey/skills inventory in the
>     > >     member's area.
>     > >       ** If you did, we all thank you.
>     > >
>     > >
>     > >
>     > >     Hi Margot,
>     > >     If you do just 3 things, site ownership is not even an
>     issue that
>     > >     needs to be discussed.
>     > >
>     > >      1. Make sure the hosting account is your account. This
>     means if a
>     > >         developer tries to hold you up for whatever reason
>     they can't
>     > >         lock you out of your hosting account.
>     > >      2. Register your domain name in your own account that you
>     pay for
>     > >         for the same reason as above.
>     > >      3. Don't sign any agreements that give ownership rights
>     to the
>     > >         developer.
>     > >
>     > >     In short, as long as you control the accounts that hold your
>     > >     domain name, sites files and database you are firmly in
>     control at
>     > >     all times and are the owner by virtue of possession!
>     > >     I also recommend having an automated database and site
>     file backup
>     > >     system that puts both of those into another location such as
>     > >     Amazon S3. This protects you from permanent loss of your
>     site due
>     > >     to a malicious act of deletion by a mean spirited or
>     disgruntled
>     > >     developer. None of this is hard and can be setup in a
>     matter of
>     > >     minutes.*
>     > >
>     > >     *I hope that's helpful.*
>     > >
>     > >     Mark Firehammer*
>     > >     *New Number: 413 341-6888 <tel:413%20341-6888>
>     <tel:413%20341-6888>
>     > > 413 303 0315 <tel:413%20303%200315> <tel:413%20303%200315> #
>     will turn off 12/31/11
>     > >     Scheduler Link: *Schedule an appointment
>     > > <http://techeffective.net/remote-support/set-an-appointment/>*
>     > >     *
>     > >     *Website:* http://techeffective.net
>     <http://techeffective.net/>
>     > >     *Facebook: *Facebook.com/techeffective
>     > > <http://Facebook.com/techeffective%20>
>     > >
>     > >     Get Tech Effective
>     > > <http://feeds.feedburner.com/%7Er/GetTechEffective/%7E6/1>
>     > >
>     > >
>     > >
>     <http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v4i1d4umtctnak&w=1
>     <http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v4i1d4umtctnak&w=1>>
>     > >
>     > >     ? Grab this Headline Animator
>     > >
>     <http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v4i1d4umtctnak&w=1
>     <http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v4i1d4umtctnak&w=1>>
>     > >
>     > >
>     > >
>     > >
>     > >     On Mon, Dec 12, 2011 at 10:21 PM, Margot Zalkind
>     > > <margotzalkind at gmail.com <mailto:margotzalkind at gmail.com>
>     <mailto:margotzalkind at gmail.com <mailto:margotzalkind at gmail.com>>>
>     wrote:
>     > >
>     > >           ** Be sure to fill out the survey/skills inventory
>     in the
>     > >         member's area.
>     > >           ** If you did, we all thank you.
>     > >
>     > >
>     > >
>     > >         Thanks for your help regarding who owns what on the
>     website -
>     > >         the question is,
>     > >         what would be in an agreement
>     > >         to protect one's ownership of a website?
>     > >         What points would you cover,
>     > >         to be sure before you have someone design/build the site?
>     > >
>     > >         Thanks all.
>     > >         mz
>     > >
>     > >
>     > >         --
>     > >
>     > >                 Margot Zalkind
>     > >                 MarchMedia LLC
>     > >                 ArcherMayor.com
>     > >                 Ph. 413.585.9445 <tel:413.585.9445>
>     <tel:413.585.9445 <tel:413.585.9445>> Cell. 802.275.2612
>     <tel:802.275.2612>
>     > > <tel:802.275.2612 <tel:802.275.2612>>
>     > >
>     > >
>     > >
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>     > --
>     >
>     >
>     > voteforgooddesign.com <http://voteforgooddesign.com>
>     >
>     >
>     > Todd M. LeMieux
>     > [Graphic Design]
>     > 413.747.9321 <tel:413.747.9321> tel
>     > www.toddlemieux.com <http://www.toddlemieux.com>
>     >
>     > Good design will prevail.ª
>     >
>     >
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-- 


voteforgooddesign.com


Todd M. LeMieux
[Graphic Design]
413.747.9321 tel
www.toddlemieux.com

Good design will prevail.ª

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