4 Replies Latest reply on Jul 17, 2010 1:51 PM by Shan-Dysigns

    Protection & Legal Rights of a Freelance Designer

    Shan-Dysigns Level 2

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


      This topic isn't Flash specific (and I will also post this in the Dreamweaver/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
          Ned Murphy Adobe Community Professional & MVP

          Rocks and hard places.


          First you oughta discuss matters with Joe (and any major/repeat client) and prepare a contract the defines the terms for copyrighted material and payment matters that you mutually agree on.  That establishes an understanding, one way or another (either you work out terms or part ways).  Then, when you get tough regarding enforcing that contract, well, don't expect too much return business (the lawsuit settlement had best be worth the cost).  Still, it's a good idea to get that understanding established.


          Personally, I don't chase the little things, and nothing I've done has been big enough that would make the cost (time, money, business) worth chasing.  I have no intention of policing everything I've ever created to make sure things haven't been altered.  In most cases I just hand over source files on request as part of the job, mentally treating what I charge as payment for rights to the work.

          1 person found this helpful
          • 2. Re: Protection & Legal Rights of a Freelance Designer
            Shan-Dysigns Level 2

            Actually, I do have a contract (it's actually a Website Packet which contains contractual documents in the end). The packet portion defines all the basic processes and steps of the entire design process (beginning with getting a domain name and why they need it, hosting, etc). It's a good resource for answering all the questions potential clients have asked me throughout the years. I got tired of answering all these questions via email for potential clients to only have them take that knewly found knowledge somewhere else. I figured it up one month how many hours I had wasted giving out free information about what steps they need to complete. So now, if someone comes to me asking me about my services and all that business, I send them the packet. I seem to attract a lot of people who know nothing about what they are getting into - maybe that's the same for all freelancers.


            The problem with my packet/contract and Joe is the fact I sent this to him many, many years ago, and we slowly got less strict about certain aspects. Sometimes you just has to pick your battles and move on, but lately Joe seems to have totally forgotten (or maybe he just conveniently ignores) the most basic aspects of "doing business". For example, I should be paid based on MY guidlines defined in the contract and NOT based on when the client pays him. I give 3 weeks to pay upon billing. Most of his clients seem to think it's ok to remain on a once-a-month billing payment cycle (as if we are a utility). This means I end up waiting 5-6 weeks to get paid (when I've basically done most of the technical work. To me, this is not professional on both Joe's part (in paying me) and the client's part (taking a month to pay Joe).


            One reason I don't believe in supplying original, layered documents (mainly Photoshop and Flash) is because when I quote the project, I imagine future monies coming to me in the form of updates. My contract is based on a yearly agreement with a choice of flat, monthly payments, or by the hour/update. The problem lies with getting Joe to understand my world in the design process. He only understand graphics, so I feel as if I'm spending too much time having to "teach" him the "whys" of how my part of the process works and why things just have to be a certain way.


            It's like I either stop working with him (which I can do the whole process without him), or I deal with all these issues, because he just doesn't seem to get it.

            • 3. Re: Protection & Legal Rights of a Freelance Designer
              Ned Murphy Adobe Community Professional & MVP

              Either live with the system that you've allowed to evolve the way it is or address the issues with Joe (et al).  Sometimes you have to bite the bullet and end a relationship.


              I had one client who was pretty much a Joe, hiring me to work on things for him or his clients that he wasn't capable of creating.  One time he asked me to create a custom dynamic MP3 player for one of his own sites, which we went back and forth on and eventually I finished it and provided a link for him to check it out.  I don't brag, but what I created was quite nice... genuinely and uniquely kewl, and satisfied all the functional requirements requested.  The response was that he changed his mind and didn't want to follow through with it... nothing else to say...  no offer to compensate for my time nor even mention of my effort.... so I told him we wouldn't be working together further.


              I have probably lost a good number of clients for return work because I do have one policy that I won't sway on--I charge by the hour and do not give fixed bids for projects.  I do this mainly because I rarely run into projects where the client can clearly define what they want up front.  I can provide a ballpark in most cases for small projects, but too often a twist evolves from the client's end that throws a given estimate out the window.... but for large projects, the policy is held firm because they tend to evolve over time.


              No matter how many times I repeat this policy, no matter how friendly I am in the reminding of it, most that come back for more end up asking for a set price for a vaguely defined project, and I provide them the same policy in my answer... it'll cost the time it takes to drag the requirements out of them and to get the work done.... any more questions? (tick, tock.... (half serious)).


              I've only been blessed once so far...  One client I had for several years was notorious for finding a nail and wanting to build a house... I could spend more time pulling teeth to get the requirements than actually doing the design work... I'm talking weeks of trying to get information/requirements defined.  Still, there was never a request for an estimate nor a question when it came time to charge.  It'd be nice to find more like that client.

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

                In the beginning of my freelancing,  I had several clients "try" to do me the way you described with the MP3 player. I quickly learned to not even breathe on a project until I'm paid something upfront. Even then, I make sure I get a definite outline of what is expected, then require half down. I've had (and still do) have clients who come to me with basically nothing and want me to create gold. Some clients are so stupid to not understand they have to physically give me content (photos, text, etc). One guy wanted a website for his painting business and kept saying "can you just create something for me?" He gave absolutely NO information (company name, address, what he offers, NOTHING). I swear, he had to either be the stupid man on the planet, or someone was messing with me. But, as the years have passed, I see more and more people contacting me with similar stupidity. I have stopped responding to most of those emails now. Sometimes I will send them a document I created called a "Website Design Packet" which has a ton of information about how the whole process works, what I need, what the client has to provide, etc. But then, I get responses like "I don't want to have to read all that", but then they still don't know what to do next - my response - "read the stupid packet I sent you, you moron"...


                Being a freelance designer really is a pain...