[Hidden-tech] agreement to protect website ?

[Don Lesser]

I guess I disagree with some of your assumptions. In any case where it
mattered, we reserved the right to reuse code. Even with clients who
intended to resell our work, when this discussion became germane, there was
never an issue with reusing subroutines or algorithms, only with reusing the
entire work. Besides, an idea is not copyrightable; an expression of that
idea is. 

 

What is the alternative to work for hire? If I ask you to develop a graphic
for my website, what other arrangement is there? I want to use it as a
unique image; I do not want to see it appear on a dozen other websites. I
don’t care if it appears on your website as an example of your work. I could
argue that is additional advertising for my site. But if it is associated
with my product or service, I do not want it associated with other products
or services whether or not they compete with me. I can’t own the shade of
blue or the circle you used. I can own the completed work.

 

 

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: Todd M. LeMieux (413) 747-9321 [mailto:todd at toddlemieux.com] 
Sent: Wednesday, December 14, 2011 9:29 AM
To: Maria Korolov Trombly
Cc: dlesser at ptraining.com; Margot Zalkind;
hidden-discuss at lists.hidden-tech.net
Subject: Re: [Hidden-tech] agreement to protect website ?

 

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
<https://mail.google.com/mail/u/1/?ui=2&ik=f5a418dee3&view=att&th=12a7138d08
2c02c6&attid=0.1&disp=emb&realattid=ii_1283fa324f74f095&zw> 

____________________________________________________
Maria Korolov •  508-443-1130 •  <mailto:maria at tromblyinternational.com>
maria at tromblyinternational.com
President,  <http://www.tromblyinternational.com/> Trombly International •
COO,  <http://www.china-speakers-bureau.com/> China Speakers Bureau
Editor & Publisher,  <http://www.hypergridbusiness.com/> Hypergrid Business





On Tue, Dec 13, 2011 at 10:49 PM, Don Lesser <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>
> Sent: Tuesday, December 13, 2011 9:51 PM
> To: "Maria Korolov Trombly" <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-glos
sary/
>
> 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 . 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>> 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> <tel:413%20341-6888>
> >     413 303 0315 <tel:413%20303%200315>   <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=iru7c61fcvc1v
4i1d4umtctnak
<http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v
4i1d4umtctnak&w=1> &w=1>
> >
> >     ? Grab this Headline Animator
> >
<http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v
4i1d4umtctnak
<http://feedburner.google.com/fb/a/headlineanimator/install?id=iru7c61fcvc1v
4i1d4umtctnak&w=1> &w=1>

> >
> >
> >
> >
> >     On Mon, Dec 12, 2011 at 10:21 PM, Margot Zalkind

> >     <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> Cell. 802.275.2612
> >                 <tel:802.275.2612>

> >
> >
> >
> >         _______________________________________________
> >         Hidden-discuss mailing list - home page:
> >         http://www.hidden-tech.net
> >         Hidden-discuss at lists.hidden-tech.net

> >         <mailto:Hidden-discuss at lists.hidden-tech.net>

> >
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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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-- 
 
 
voteforgooddesign.com
 
 
Todd M. LeMieux
[Graphic Design]
413.747.9321 tel
www.toddlemieux.com
 
Good design will prevail.ª
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