[Hidden-tech] agreement to protect website ?
Todd M. LeMieux - (413) 747-9321
todd at toddlemieux.com
Thu Dec 15 10:12:47 EST 2011
Maria,
You're right, different projects and industry sectors handle all these
things a little differently and some dynamics have changed with the
times...some good, some not. Hence my opening comment in my original email:
Contracts should be fair and *negotiated*; certainly not all work
agreements need to be work for hire.
To Don's points, yes that website is a little over the top in some of
the delivery of their message. But work for hire, outside of an employee
relationship, is too broad and thus unfair to the content creator.
You're right that certain specific elements of a finished project
wouldn't--and ethically shouldn't--be reused.
However, an example of how a work for hire situation works against an
artist is this: let's say I design numerous prototypes of a website. In
the end, of course, only one of those designs is used. If on a future
project I want to reuse non-specific or not proprietary elements of one
of my proposed designs(but unused / not chosen...perhaps some icons or
some such) (much like the pieces of code we both referenced in the
earlier post), a work for hire agreement precludes me from doing that.
I'll use another web example that has happened many times: let's say a
designer creates a website and the client decides one of the icons would
make a good logo and proceeds to then use that graphic as a logo. Not
only should that be compensated for differently, as a logo project, but
it also is a tremendous disservice to the process of properly branding a
company and creating an original logo solution. But, under work for
hire, a client can do just that.
A real-world example: the original cover of Michael Crichton's Jurassic
Park was designed by a book cover designer named Chip Kidd. The artwork
was subsequently lifted and used for the movie poster by the movie
studio.... Blockbuster book, blockbuster movie...but marketing image
used for the movie poster didn't cost the studio because they just
lifted it from the book cover. Additional uses of creative content are
supposed to be compensated; it's at the heart of copyright law and
licensing.
I certainly appreciate all the viewpoints this discussion has provided;
to me it underscores my original assertion that contracts should be fair
and negotiated. Different projects and client relationships are unique,
not all work agreements need to be work for hire and contracts should
reflect the specifics of each arrangement.
Best,
Todd
On 12/14/11 10:41 AM, Maria Korolov Trombly wrote:
> 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
>
>
>
> 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 Wed, Dec 14, 2011 at 10:18 AM, Don Lesser <dlesser at ptraining.com
> <mailto: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 <tel:%28413%29%20387-1040>
>
> (413) 586-0545 <tel:%28413%29%20586-0545> (fax)
>
> dlesser at ptraining.com <http://dlesser@ptraining.com>
>
> www.ptraining.com <http://www.ptraining.com>
>
> *From:*Todd M. LeMieux (413) 747-9321 <tel:%28413%29%20747-9321>
> [mailto:todd at toddlemieux.com <mailto:todd at toddlemieux.com>]
> *Sent:* Wednesday, December 14, 2011 9:29 AM
> *To:* Maria Korolov Trombly
> *Cc:* dlesser at ptraining.com <mailto:dlesser at ptraining.com>; Margot
> Zalkind; hidden-discuss at lists.hidden-tech.net
> <mailto: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
>
>
>
> ____________________________________________________
> Maria Korolov • 508-443-1130 <tel: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>>
>
> > >
> > >
> > >
> > > _______________________________________________
> > > 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 <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
> >
> >
>
> > _______________________________________________
> > Hidden-discuss mailing list - home page: http://www.hidden-tech.net
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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
>
>
--
voteforgooddesign.com
Todd M. LeMieux
[Graphic Design]
413.747.9321 tel
www.toddlemieux.com
Good design will prevail.ª
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