[thelist] Client asked for original files.....

[dan donaldson]

On Thursday, February 21, 2002, at 08:53  AM, cdj wrote:

> By the way, what country do you live in? In
> Canada, unless it is explicitly stated in the contract, any work that is
> commissioned is the sole property of the company doing the
> commissioning. Therefore, the client owns the work unless the contract
> says differently.

That's true, but it depends on what the work comissioned was. What you
are describing is relevant when in an employer/employee situation - what
I create if I'm working for you (usually exclusively for you, as a part
of your organization) is yours. What I create if I am working for me,
and selling the product to you is different, as in a contracted work
situation.

In Canada, copyright automatically inheres to the creator of the work.
Given that you create lots of things along the way to creating the
finished product, it isn't automatically the case that the client owns
the source material you used to create the thing the client bought. For
instance, what if you were working for two clients and decided to use
the same code in your fla files to run some part of the Flash in both
projects? The clients buy the use of your code, but not the code.
Otherwise, they'd both own it, presumably outright. That isn't
necessarily fraud, but it's close.

Same is true with licensed material. I'm currently using a Director Xtra
for a client. If I pay for that Xtra, then it's mine. The license allows
me to include it in Director presentations, so I can include the use of
it for my client, but not the thing itself. I then have to amortize the
cost over several jobs, perhaps for other clients. If the client picks
up the tab for the Xtra, I definitely don't have the right to use it in
my other jobs.

In effect, the fla files are material that, unless otherwise specified
in the contract, the client has the use of, but does not own. The phrase
'the use of' means in the case of the the Flash file the swf, not the
fla. In the case of the Photoshop file, it would be a flattened version
of the image, not the layered image, all the actions, stock photography,
fonts, etc. etc.

On the other hand, in my current project, I wrote into the contract that
all the programming developed specifically for the project was the
client's property when completed. It made them happy, and shows good
faith, but it is not a given.

just my fiftieth of a dollar.

My first tip:

<tip type="contracts and copyright" author="dan donaldson">
Clarify with your client what it is that they get when entering into a
new contract. Be aware of what rights of ownership copyright law gives
you and them, and do your best to understand what the client really
needs in terms of rights to your work at the outset.
  Most clients, especially ones without much experience developing web or
other creative projects, will assume that they need all rights to
everything. But this should come at a premium. Just as photographers
don't release their negatives, but allow publication rights (one time,
time-bound etc.) to their images, so you should educate your client and
help them understand what the range of use of your work they really need
is.

Remember that if you sell rights to a client, and then re-use the work
in another project, the client may have recourse against you. No-one
likes to learn that what they shouldered the development costs for, a
competitor is getting at a lower cost.

But the time to determine this is at the outset, not at the end.
</tip>

dan donaldson