[Hidden-tech] agreement to protect website ?
Maria Korolov Trombly
maria at tromblyinternational.com
Wed Dec 14 10:41:12 EST 2011
Todd --
Freelance writers used to work for single-publication contracts (or no
contracts, which is the same thing). Then the internet came out and all
newspapers and magazines were suddenly being sued for re-use of articles,
and having to figure out which of their (sometimes decades-old) articles
were written by staffers, and which by freelancers.
To avoid this happening again, every publication I know -- and I've written
for dozens -- has switched to work-for-hire contracts. There may be some
small pubs out there who haven't gone online yet, or who haven't been
following the trade news, that haven't started asking for work-for-hire
contracts, but I personally don't know of any.
The only exception to this is syndicated content -- columnists,
cartoonists, wire services -- that distribute their work to multiple
outlets.
Editors understand the requirements of freelance writers, and many
contracts include clauses allowing the work to be reprinted on personal
websites as part of professional portfolios.
For the most part, however, no publication can afford to see their custom
articles elsewhere. Unlike in the pre-Web days, everything is available
with a quick search. You can search for similar articles -- even for
similar images. Publications that used to have non-overlapping audiences of
print subscribers are now competing for the same online readers.
For freelance writers, this means one of three things:
* You learn to live with it.
* You self-syndicate your content or sign up with one of the existing
syndicates.
* You start your own publication (easier than ever these days, with the
Web).
I'd guess the same -- or something similar -- would apply to any other
creative professional.
A programmer, for example, could sell pre-packaged software (and charge
extra for customization work, bonus!) or create a site where their sell
their product as a service to subscribers.
- Maria
[image: Maria Trombly Twitter headshot.jpg]
____________________________________________________
Maria Korolov • 508-443-1130 • 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 Wed, Dec 14, 2011 at 10:18 AM, Don Lesser <dlesser at ptraining.com> wrote:
> 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
>
>
> ****
>
> [image: Maria Trombly Twitter headshot.jpg]****
>
> ____________________________________________________
> Maria Korolov • 508-443-1130 • 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>
> 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" <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-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 . 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> <413%20341-6888>
> > > 413 303 0315 <tel:413%20303%200315> <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
> >
> > >
> > > ? Grab this Headline Animator
> > > <
> 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>> 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>****
>
> > >
> > > You are receiving this because you are on the Hidden-Tech
> > > Discussion list.
> > > If you would like to change your list preferences, Go to the
> > > Members
> > > page on the Hidden Tech Web site.
> > > http://www.hidden-tech.net/members
> > >
> > >
> > >
> > > _______________________________________________
> > > 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>****
>
> > >
> > > You are receiving this because you are on the Hidden-Tech
> > > Discussion list.
> > > If you would like to change your list preferences, Go to the
> Members
> > > page on the Hidden Tech Web site.
> > > http://www.hidden-tech.net/members
> > >
> > >
> > >
> > >
> > > _______________________________________________
> > > Hidden-discuss mailing list - home page: http://www.hidden-tech.net
> > > Hidden-discuss at lists.hidden-tech.net
> > >
> > > You are receiving this because you are on the Hidden-Tech Discussion
> list.
> > > If you would like to change your list preferences, Go to the Members
> > > page on the Hidden Tech Web site.
> > > http://www.hidden-tech.net/members
> >
> > --
> >
> >
> > voteforgooddesign.com
> >
> >
> > Todd M. LeMieux
> > [Graphic Design]
> > 413.747.9321 tel
> > www.toddlemieux.com
> >
> > Good design will prevail.ª
> >
> >****
>
> > _______________________________________________
> > Hidden-discuss mailing list - home page: http://www.hidden-tech.net
> > Hidden-discuss at lists.hidden-tech.net
> >
> > You are receiving this because you are on the Hidden-Tech Discussion
> list.
> > If you would like to change your list preferences, Go to the Members
> > page on the Hidden Tech Web site.
> > http://www.hidden-tech.net/members
>
> ****
>
> ** **
>
>
>
> ****
>
> -- ****
>
> ** **
>
> ** **
>
> voteforgooddesign.com****
>
> ** **
>
> ** **
>
> Todd M. LeMieux****
>
> [Graphic Design]****
>
> 413.747.9321 tel****
>
> www.toddlemieux.com****
>
> ** **
>
> Good design will prevail.ª****
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.hidden-tech.net/pipermail/hidden-discuss/attachments/20111214/7247bfe1/attachment.html
More information about the Hidden-discuss
mailing list