9 Replies Latest reply: Jul 17, 2010 2:32 PM by Jeff S GP2 RSS

    Protection & Legal Rights of a Freelance Designer

    Shan-Dysigns Community Member

       

      Sorry for the length of this post, but I believe this topic and all comments can benefit everyone.

       

      This topic isn't Dreamweaver specific (and I will also post this in the Photoshop forum), but in part it "does" pertain to graphic design created in Photoshop (along with web development created using Dreamweaver & all other necessary software). My questions are about ethics in the freelance market of design. I'm looking for links to websites that people have found good/legal information concerning "best practices" and/or “legal protection copyrights” for the lone designer. I would also appreciate any/all thoughts/comments about other freelance designers (mainly Photoshop and Dreamweaver) pertaining to how they "run their business both ethnically and in legal terms", or any similar experiences they have had and what the ultimate solution was.

       

      My main concern is this: I've been a freelance designer (graphic, web, audio, video) for many years, and have been contracted out for many projects. On numerous occasions, I've been contracted out by another designer (who basically only works in Photoshop/Illustrator - I will call him Joe). Throughout the years, we seem to butt heads more and more about "what is acceptable and appropriate" when it comes to the client and the whole "process" of the design stages.

       

      For example, a client comes to Joe for a website - they supply him with conceptual details - Joe approaches me with these details and I quote my price for my involvement - Joe types up a simple contract (it's actually just an invoice for the client) - ultimately Joe designs a mock-up of the website interface in Photoshop (menu, navigation, fonts used, colors, etc), and will sometimes include an example of what a particular web page will look like. That's basically the end of his involvement in the design process. Of course, Joe maintains direct contact with the client if I have questions he can't answer (which only delays the whole process).

       

      My involvement usually includes:

      1. domain registration, account setup, hosting setup, create email accounts, ftp setup, SEO, and things of that nature

      2. sometimes I have to re-work the Photoshop document for proper output to HTML (slices, etc), and/or importing into Flash

      3. create the website documents (HTML, Flash) using Javascript, XML, CSS, PHP, etc

      4. build, test, and eventually launch the website

       

      Now, when it comes to the files/documents I create, what rights do I have pertaining to ownership of the design and/or copyright of all my work? For example, Joe expects me to release (to him) any/all layered Photoshop documents (.psd) and/or Illustrator files (.ai) I had to personally create in order to make some of the graphical elements he wasn't able to. Joe also expects me to give him any/all Flash documents (.fla) and/or layered video edits (like session files for Vegas) used in creating additional content for the website. In a given Flash document, there is custom action script, and many times Flash components I have had to purchase.

       

      I've explained to Joe (and this is where I need to know in legal terms whether I'm right or not) that any documents/files I personally create from scratch (layered Photoshop, Flash, Video, Audio), I do NOT have to supply him with those original/layered documents/files. When the website is completed and launched, I place my name and Joe's name on the bottom (as designed by so-n-so). These websites are added to my online portfolio. It is my belief that NO ONE but me or Joe should have the legal right to edit/alter/change anything on the website (especially pertaining to any original work I've created). For example, if I create a header banner (with many layers in Photoshop), and place the exported image on the website, can the client alter/add to (or have someone other than me or Joe) any part of that banner? An example would be a client didn't want to have to pay me for updating the banner, so the client had someone else (an amateur) add something to that graphic (which made the banner look cheap - in addition to altering other parts of the website). If a potential client of mine looks at this website and thinks that cheap banner is the extent of my work, that could have a negative effect on my business and potential profit.

       

      Simply put, when a freelance designer (or even a corporate designer for all purposes) creates something for the web, what legal protections are in place if the client allows another to alter the content (even if it’s as simple as taking a flattened jpg and adding to it)? Also, am I obligated by any law or “unwritten ethics” to supply Joe (or the client) any original files I’ve created? I feel as long as my name is on that website (even if it's taken off by someone), I have an unwritten copyright to any/all original designs. If I have no protection against being able to maintain ownership of original documents I create, then anyone can basically “takeover” and change any/all my work. This can negatively affect so many things as a freelance designer and ultimately take me out of the profit loop.

       

      I appreciate all legitimate comments and/or related stories. Thanks...

       

      I forgot something...

       

      Being contracted by another designer, should I have  to wait until HE gets paid by the client before I get paid? This is  another issue that comes up a lot. I feel I should be paid as if I am  working for Joe (and not be under any restrictions as to when the client  pays Joe). One last thing, how many days should be allowed for a client  to pay me directly, or for me to be paid by a contractor?

       

      Message was edited by: Shan-Dysigns

        • 1. Re: Protection & Legal Rights of a Freelance Designer
          JoeyD1978 CommunityMVP

          When someone pays a designer for their work, they're buying a license to display said work - that's it. The copyright will remain with the original designer unless it's handed over to the client by way of transferal of copyright in a contract, or if you're working under what's called "work for hire". Similar law applies to code as far as I understand.

           

          In practice however, clients assume they own the copyright once they pay for the site. If you approach a client and ask them to "renew their copyright" after their site has been up for 12 months they'd laugh in your face. If you sent them an email and told them you don't like the new button they added they'd also laugh at you. In both instances they'd never talk to you again, which is why design professionals don't flex their rights and why ultimatly people assume they control copyright after they hire a designer/developer.


          This confusion can be avoided by using a proper contract.

           

          On your side-topic, I find it a little odd that you're not giving Joe back his Photoshop files after you tweak them for HTML. Most places, including the hunrdreds of companies in India that do your job for pennies on the dollar, wouldn't dream of changing the design in the first place - let alone refusing to send back the modified files. If on the otherhand you're creating major visual elements for the website (not sure what you mean by "banner"), I'd ask why the "designer" isn't doing that? Either way it sounds like you need to figure out a better working relationship with "Joe".

          • 2. Re: Protection & Legal Rights of a Freelance Designer
            Shan-Dysigns Community Member

            Thanks for the reply. I hope this topic gets many responses and doesn't get buried. A few comments...

             

            On your side-topic, I find it a little odd that you're not giving Joe back his Photoshop files after you tweak them for HTML.

            First, this isn't part of any issue I described. Any amount of tweaking I do refers to minor things like re-aligning links when they aren't properly spaced, changing copy text to web default fonts, etc. I don't see a reason why Joe would need the edited Photoshop document back, but if he asked for it, as long as I didn't add anything to it personally, I would send it back to him. If I did add something substantial (and it was an original creation of mine), I would only send him the Photoshop file of his that I tweaked.

             

            Most places, including the hunrdreds of companies in India that do your job for pennies on the dollar, wouldn't dream of changing the design in the first place - let alone refusing to send back the modified files.

            Uh... all I can say is if someone wants to go to India and get a "penny on the dollar" website, then more power to them. If a client wants to deal with a company in India (not to mention trying to audibly understand their dialect, much less trying to keep the work in the USA) instead of dealing directly with a designer (if not local, at least within the states), then I'll let the client have that experience. I think a client would much rather deal with a professional freelance designer than a company (at least ALL my clients have told me that's why they looked for a freelance designer). Also, you are not reading my post correctly if you think I just "change the design on my own". Joe and I have worked together long enough that we bounce ideas off each other, so the interface/mock-up he creates becomes a collaborative effort in the end. Based on his initial conception, I input my thoughts until we both agree on the final layout. The only mention to me not giving Joe a Photoshop/Flash document was if I was the originator.

            If on the otherhand you're creating major visual elements for the website (not sure what you mean by "banner"), I'd ask why the "designer" isn't doing that?

            This is exactly what I'm talking about (me creating major visual elements). A "banner" is just a generic term I used for a graphic (usually at the top part of the website) which might contain many layers - either above or incorporated in with a navigational menu. The designer isn't doing some of these things because

            a). it would be an idea of mine (that we agreed upon) to add

            b). it would be something Joe isn't capable of creating - really there are many reasons - Joe's "mock-up" is really just a visual start point in which I may or may not insert my ideas

            Either way it sounds like you need to figure out a better working relationship with "Joe".

            Yes, that's the reason I wanted to get other peoples' opinions about "what they would do" because (since Joe only knows graphics), he sometimes doesn't understand my side of the process and kind of challenges me when something can't "just happen that way" because he thinks it can.

            • 3. Re: Protection & Legal Rights of a Freelance Designer
              actionscafe Community Member

              Hi...

               

              This subject brings back bad memories, but here's what I've learned.

               

              I'm a Canadian freelance graphics designer and do business in Canada only. In Canada, when a person is commissioned to do creative work by anyone or any organization, the author of that work holds the copyright to all the work until he is paid in full. Once paid, the copyright to all commissioned material transfers to the person or organization that commissioned the author. Of course this can be altered by mutual agreement (better get it in writing). All material prepared for the commissioned project belongs to the person or organization who commissioned the work.

               

              As far as being paid, this is also subject to agreement. You and the person or organization should agree to payment terms beforehand. Some people who hire third party help will let the authors submit an invoice directly to the client. Some won't, by request of the client, who wants to see one invoice only.

               

              It's common practice for individuals who don't have a large working budget, to hire professionals to do work on a project, and insist that payment is contingent on and when they get paid. Personally I don't like this arrangement because I don't have any control over the relationship with the client. If the guy that hires me screws up, then I suffer too. You can demand a different arrangement but you might not get the job. All is fair in this game. The other, safer alternative is to ask that you be hired as a temporary employee for this project only. In Canada, if you get shafted by a person who hired you, the agencies that oversee corporate and business affairs will insist that you are an auntreprenure, which makes you ineligible for government protection... take your case to the courts. But as an employee you have all the power and protection of the government behind you.

               

              So what I'm saying is, find out all you can about the person who's doing the hiring, get working arrangements and agreements in writing (a verbal agreement isn't worth the paper it's written on), then go for it if it feel good.

              • 4. Re: Protection & Legal Rights of a Freelance Designer
                pziecina CommunityMVP

                Hi

                 

                I work mainly for US company's but am based in the UK.

                 

                There are a number of issues at play in the scenario you are describing which has as much to do with your definition of what 'freelance' means and the difference between being employed by someone or working independently.

                 

                The freelance situation that you describe is not actually 'freelance', but working under contract on a per project basis, (many think this is freelance, but this is simple contract work). The fact you do not have a proper written contract also 'clouds the water' as to the legal situation regarding copyright, as you are working 'under-contract' so to speak, anything you produce for the project belongs to Joe, although you may retain the 'intellectual' copyright providing he is not paying any benefits associated with normal employment, (holiday, sickness, etc) if he is paying for such items he also owns the intellectual copyright outright, as the items produced where done so under his employment and in his 'paid-for' time, (so to speak) similar to an employee, (even under contract) for a R&D firm where the firm retains the copyright to anything produced/developed in there time.

                 

                As to pay, this should be decided beforehand, but Joe must pay you for the work as agreed and not when he is paid, as your contract is with him not his client. As an example, if you purchase new software from Adobe, you must pay them at time of delivery, (this should be when you actually take delivery of the software, not when they dispatch it) and you cannot say that you will pay them when you are paid by your client!

                 

                As for ethics in web design/development, I did do some research a while back on this subject and came to the conclusion that none exist unless it is personal ethics, (short and incomplete article, here - http://www.pziecina.com/design/details.php?item=4).

                 

                To conclude Joe owns everything, (this includes all files produced) unless previously decided by contract, and you have no say in what he allows or does/doesn't do with these.

                 

                The lesson to be learned form this is always have a written contract, and do what I do, include a clause saying - "Anything created or written by xyz, is the property of xyz unless agreed otherwise". This way if they wish the copyright or to use any items other than in the form/situation previously agreed, they must ask, (and pay) me. But as many people, should we say ' think that everything on the web is free", (including many designers/developers) the rule I use when working 'freelance' is to charge between 20%-50% more, depending on how much I feel I can trust them.

                 

                PZ

                • 5. Re: Protection & Legal Rights of a Freelance Designer
                  JoeyD1978 CommunityMVP

                  As a freelancer, the original poster isn't automatically entering into a work for hire arrangement. "Joe" does not automatically own the copyright like you're claiming. Unless there was a contract in play stating otherwise, the original copywrite remains with the designer/programmer in the United States.

                   

                  Here's a good summary on a much talked about issue:

                   

                  In its simplest form, work for hire means that an employer owns the copyright of the work created by its employees. A free lancer who is not "employed" by a company owns the work he or she creates unless the work is transferred in writing to the hiring company. If you work with free lancers on a project by project basis and you do not have a work for hire agreement neither the firm nor the firm's clients will own the rights to the work created by the free lancer.

                   

                  From: http://www.designmanagementresources.com/business05.html

                  • 6. Re: Protection & Legal Rights of a Freelance Designer
                    pziecina CommunityMVP

                    the original copywrite remains with the designer/programmer in the United States.

                    Only the intellectual copyright, this is different from copyright in the US, where 90% of my work is done.

                     

                    The fact that there is no contract does cloud the situation, and this I also pointed out. It could even be viewed as a partnership in many respects without a clear contract.

                     

                    PZ

                    • 7. Re: Protection & Legal Rights of a Freelance Designer
                      Shan-Dysigns Community Member

                      In response to "having a proper contract", I actually have one. I made comment about it on another post http://forums.adobe.com/message/2981030#2981030

                       

                      In short, my contract states I have the right of ownership to any/all original content I create (basically meaning anything with layers). I have also explained to Joe that clients are only charged and/or pay for the "exported/flattened/rendered version of the file(s)" whether it be graphics, video, audio, etc. My contract also mentions I retain full ownership rights to any original material created by me, and I have the right to withhold these original documents unless an agreement is made in writing and an additional "release of original content" waiver is signed. It is my belief and understanding when I create a website, I will also be maintaining that website. My contract is a yearly agreement which simply states for the period of one year, I will be the only one making changes to the content. I do not want to be any part of a client who wants me to create a website and then have that client switch to a lesser/cheaper experienced designer to make updates (just to save money). I do, however, state if a client wants to go this route, the charge for my design will be quite a bit higher. I feel a freelance designer would only be shooting themselves in the foot if they freely allowed the client to take ones work to another person for updates. Sometimes, the updates eventually brings in as much money as the original design.

                       

                      Either in this topic or the topics in the other forums (Photoshop and Flash), I mentioned how I've had too many instances where someone has taken my work and "added" to it, not only claiming it to be theirs, but also somehow getting paid more for their addition than what I was paid for the whole thing (theoretically). As a freelance designer, I just want to know everything I can about being able to protect and govern my original content. As mentioned before, Joe and I have worked together for several years (we've known each other for even longer), so this has nothing to do with me needing to research him and all that. As stated before, I gave him my contract a long time ago for him to read, but it wasn't sent to him in a business sense (meaning it wasn't sent to him for a project). I sent it to him as a guide and a general understanding of how I operate and what rules I go by. I didn't require him to sign it, nor do I think he ever would have.

                       

                      The problem now is as Joe and I do more and more websites, the things I let slip from him before are really just a waste of time now. When I brought this to his attention, he kind of flipped out (especially when he mentioned something about "well you are going to give the client the original Flash and Photoshop files aren't you?"). Like I said before, he lives in the graphics world only, I live in the graphics, web develop/design, audio, video, flash, programming language, etc worlds, so projects can become a battle sometimes. I just want to hear stories from other designers about their feelings and understanding about my situation.

                      • 8. Re: Protection & Legal Rights of a Freelance Designer
                        Shan-Dysigns Community Member

                        One other issue that I have to think about (whether it be me working for another designer or directly for a client), is about final payment. As said before, I require half up front.

                         

                        When I work directly with a client, I post their website to a folder (either a sub folder on their domain or a folder under my personal domain) so the client can view the progress and request minor changes. When the website is complete, and the client approves of everything, my ideal situation would be to receive the final payment BEFORE I physically launch the website to the root of their domain. I'm cautious as to launching the website and then have the client skip out on me. Under my method, even if the client skips out on me, they won't have a completed website to show. Either way, I would have lost the other half of the payment, but the client wouldn't have anything to show for their down payment. I know this sounds a little harsh, but I just want to make sure I'm exercising legal rights by doing so.

                         

                        I'd like to hear stories of other designers when it comes to dealing with final payments for a website, and when that website finally gets launched.

                        • 9. Re: Protection & Legal Rights of a Freelance Designer
                          Jeff S GP2 Community Member

                          I had been a freelance illustrator for closed to 10 years,  and if there is one truism involved with this issue,( an probably every industry)  it's  that "the one who pays the bills, holds all the cards."
                          There are countless rules , regulations,  books on the issue of copyrights and ownership, however in the real world this means very little when simply trying to make a living. I've gotten into the habit of simply charging  a bit more and not dealing with issues of license fees, re-prints etc.  Its simply not worth my effort..  and besides, even if I were to come against an issue where my work was used, would I pay the thousands of $ needed  to argue against this?

                          Really, why worry about weather or not this person receives all the psds, layouts, or giff  icons and whatnot.. Simply charge a bit more for your time and effort... and make yourself invaluable.

                          The key is to find those who you trust and enjoy working with.

                           

                          Jeff