8 Replies Latest reply: Jul 19, 2010 10:05 PM by gener7 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 Photoshop specific (and I will also post this in the Dreamweaver 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
          John Joslin Community Member

          I think you are asking in the wrong place – Photoshop is not even tangentially involved in your question.


          Also, not many people are going to read such a long post past the first couple of lines.


          I do hope you get a useful answer but you'd be better off doing some internet research on the matter. (Or buy a book on freelancing, they all have a chapter or two on Legal Rights.)

          • 2. Re: Protection & Legal Rights of a Freelance Designer
            Hobotor Community Member

            You're making things way too complicated. You either work for Joe, this means joe is your client and should be treated as such; OR you use "Joe" as an agent, meaning the end user and not joe, gets to call the shots.

            Don't mix those two up, you're setting yourself up for frustration and fights.

            • 3. Re: Protection & Legal Rights of a Freelance Designer
              Mylenium CommunityMVP

              If you live and work in the US, you sell your soul. There is no "first origin" rule unlike here in Europe that would allow you to fight in a court for your work even after 20 years. If the client or agency pay what in legal terms can be considered sufficient compensation for your work, they assimilate your stuff and they are pretty much free to do with as they please. Your work is a simple one time deal. Whether you hand over editable files or not, is an unrelated matter and that is between you and Joe. The common practice is to either not hand out those files at all and only provide dumbed down files (flattened images etc.) or to ask a price many times higher for the editables. That's what we do - the client has a right to get a workable final product, e.g. a 3D animation as a rendered clip, but unless stipulated in the contract, he has no claim to the auxiliary files used to produce that animation. If he still wants them, he pays 20 times the price...

               

              Mylenium

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

                I think you are asking in the wrong place – Photoshop is not even tangentially involved in your question.

                Photoshop has a LOT to do with my question. The question involving Photoshop involves ownership of original content between the designer and the client. My question is about the WHOLE design process (and Photoshop is part of it).

                 

                Also, not many people are going to read such a long post past the first couple of lines.

                I'll take my chances. This isn't your usual "help me because I don't know how to make a graphic" post. I feel it's a topic of little discussion (on these forums and the Internet in general). Finding/reading books about "design ethics and designer's legal rights" may not be as valuable as personal stories from other designers. I can't simply explain my whole situation in a few sentences. If people don't have anything to add to this post or this topic, I'm sure they wouldn't have even opened this topic. If they don't have the time to read everything, that's their choice. I don't worry about the length of my posts. It's not really an "answer" per se I'm looking for, but just other people's experiences in general. Yes, if there are definable guidelines in any publication, I would like to read through it, but I think these issues are so subjective and relative to so many varying parameters, I can't imagine there ever being one definable and overall answer.

                You're making things way too complicated. You either work for Joe, this means joe is your client and should be treated as such; OR you use "Joe" as an agent, meaning the end user and not joe, gets to call the shots.

                Don't mix those two up, you're setting yourself up for frustration and fights.

                I don't think this person really read my post or understood the purpose of me writing it. I'm not mixing anything up. I was asking for stories about how other designers (who are either freelancers like myself or contracted out) go about their business in relation to my issue. For example, what does "joe is your client and should be treated as such" mean? Define what you mean why treating him as a client. That statement is really vague.

                 

                The common practice is to either not hand out those files at all and only provide dumbed down files (flattened images etc.) or to ask a price many times higher for the editables. That's what we do - the client has a right to get a workable final product, e.g. a 3D animation as a rendered clip, but unless stipulated in the contract, he has no claim to the auxiliary files used to produce that animation. If he still wants them, he pays 20 times the price...

                This is useful information (real-world experience from another designer). I especially take note (and agree with) the overall statement of "unless stipulated in the contract, he has no claim to the auxiliary files used to produce that animation". Whether this is actually in legal terms or not, I also feel the client never has the rights (by default) to any original works (just the exported/flattened/rendered versions). You are the first person I've actually heard/read where they comment about making the client pay more for original files. I, too have the same belief - I just needed to see another agreeing to the same.

                 

                I hope to read more instances and stories from others.

                • 5. Re: Protection & Legal Rights of a Freelance Designer
                  John Joslin Community Member

                  Shan-Dysigns wrote:

                   

                  I think you are asking in the wrong place – Photoshop is not even tangentially involved in your question.

                  Photoshop has a LOT to do with my question. The question involving Photoshop involves ownership of original content between the designer and the client. My question is about the WHOLE design process (and Photoshop is part of it).

                   

                   

                  Sorry, what I meant is that, while you mention Photoshop, it could just as easily be any other creative software. Thus it is not a Photoshop question.


                  We had several looong discussions in the old pre-jive lounge on just such topics in the past but they fizzled out when the more interesting members left after the forum software was changed.


                  It wasn't helped by Adobe's revised terms of use either!

                  • 6. Re: Protection & Legal Rights of a Freelance Designer
                    Hobotor Community Member

                    I don't think it's very difficult. By "treat him as your client", I  mean exactly what mylennium said. The end user gets the finished  product, not the work-files.

                    That's what you get paid for.

                    Any  request for working/master files, should be on the contract.

                    But as I said before, you're mixing things up. If you want Joe to pay you,  before the end user pays him, then you are working for Joe. He is your de facto boss/client , in which case you have a contract with "him" and not the person who ordered the site.

                     

                    Anyway in short: end user only gets what he asks and pays for.

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

                      Sorry, what I meant is that, while you mention Photoshop, it could just as easily be any other creative software. Thus it is not a Photoshop question.

                      That's why I started the post with "This topic isn't Photoshop  specific (and I will also post this in the Dreamweaver forum), but in  part it "does" pertain to graphic design created in Photoshop (along  with web development created using Dreamweaver & all other necessary  software)." But since I posted this in the Photoshop forum, I wanted to get the "photoshop" view of the overall topic - just like I wanted to get the "dreamweaver" and "flash" views in those respective forums.

                      • 8. Re: Protection & Legal Rights of a Freelance Designer
                        gener7 Community Member

                        An excellent legal resource would be the Graphics Artists Guild.  http://www.graphicartistsguild.org/