[Hidden-tech] agreement to protect website ?
Don Lesser
dlesser at ptraining.com
Wed Dec 14 09:51:56 EST 2011
Todd, in checking the workforhire.com site, I found it pretty disturbing.
It intimates that any contractor is essentially getting screwed by agreeing
to a work-for-hire agreement. As Maria Trombly has pointed out, in some
industries, such as book and magazine publishing, it is appropriate to keep
rights and license only those that are required. (I have the rights to all
articles I wrote for the Daily Hampshire Gazette over 7 years, for
example.)
The site also seems to maintain that employees are intentionally screwed by
their employers who keep fiscal rewards of anything the employee creates. I
find this unsettling. I see programming, tech writing, web development, and
commercial graphic design as creative endeavors for sure, and the people
who do them well have talent and craft. However, the work would not be
undertaken without a contract and pay from a client. They have no
“value” outside of the original contract-a logo for Company A is useless
for Company B or a web site or custom code for A is similarly useless for
B, unless they intend to resell it and compete with the original buyer.
These are one-off products. You can argue that a novel is also a one-off
product, but it is covered by licensing of specific rights because of its
intended use. Normally, a publisher does not remove the author’s name and
in fact wants the author’s “brand” to sell the book. (The author of a
ghostwritten book typically sells all rights to the work.) A movie, for
example, is rarely the product of a single person and is commissioned and
paid for by a corporation; the creative team may negotiate a back end based
on sales, but rarely does the cameraperson or a minor actor get more than a
salary. A database that is used within one company does not acquire
additional revenue. A tech document that is sold with a product can be
considered to accrue additional revenue, but without the product it is
useless. I just don’t see a correlation in the tech arena.
A programmer is entitled to negotiate a back end, for example, 10% of all
profits generated by a website, but I doubt s/he will get very far unless
the relationship is more than a simple development. I have been offered a
percentage of a company in exchange for development of the company’s
product. This is a different relationship and not a simple independent
contractor arrangement. And a programmer who kept source code after full
payment was received, a web designer who kept the admin password or a
domain registration from a client, a network engineer who did not release
the admin rights to the client are all, in my opinion, unethical. Once you
get paid, the client is entitled to the full product. And the
programmer/designer gets full rights to refer to the work in subsequent
marketing, etc. unless the agreement was different.
Don Lesser
Pioneer Training, Inc.
139B Damon Road, Ste 8
Northampton, MA 01060
(413) 387-1040
(413) 586-0545 (fax)
dlesser at ptraining.com
www.ptraining.com
From: hidden-discuss-bounces at lists.hidden-tech.net [mailto:hidden-discuss-
bounces at lists.hidden-tech.net] On Behalf Of Todd M. LeMieux (413) 747-9321
Sent: Tuesday, December 13, 2011 8:21 PM
To: Maria Korolov Trombly
Cc: Margot Zalkind; hidden-discuss at lists.hidden-tech.net
Subject: Re: [Hidden-tech] agreement to protect website ?
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
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On Tue, Dec 13, 2011 at 7:43 AM, Mark Firehammer <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>
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On Mon, Dec 12, 2011 at 10:21 PM, Margot Zalkind <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 Cell. 802.275.2612
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Good design will prevail.ª
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