Anyone who knows anything about me knows that I am in absolute agreement with Greg Hoy about employing a rock-solid contract. I do, however, have a couple of salient points and one point of disagreement I'd like to share regarding his recent Cognition article entitled "Flattery is Overrated".
First, a point of clarification: Creative Commons is the polar opposite of Copyright protection. Creative Commons is the equivalent of "Open Source" software, whereas formal Copyright protection is the equivalent of AES encryption.
Under the U.S. Copyright Act, the work you create is automatically protected. All you have to do is place a © with your name and date on the work. Granted, this is essentially a placeholder and may or may not stand up in court, but if you can produce the native files or the original work, you do actually stand a "chance in Hell" of winning a legal battle. The only decision you will have to make is whether or not you have the funds to pursue the case in court.
Obtaining copyright protection is a perfectly acceptable bit of advice, but it's not practical or necessary for every client. Unless you have a staff member who is willing to take on the process of filing for copyright protection for every project you do, I would argue that it is simply not practical for a small business owner to deal with the morass of paperwork, procedures and filing fees associated with obtaining official Copyright protection. It's an incredibly time-consuming and convoluted process.
Just one look at the U.S. Copyright Office's fee schedule will bear this out:http://www.copyright.gov/docs/fees.html
It would make more sense to offer Copyright protection as an optional service for your clients. Then employ the assistance of a lawyer or a third-party service who specializes in Copyright filing to handle the process for you.
"Intellectual Property" is a slippery slope because its interpretation can be twisted 1000 ways from Sunday by any competent attorney. That said, I absolutely do not agree with the infuriatingly "standard" practice of web design firms providing source materials to clients free-of-charge.
You should be assigning copyright to your clients upon final payment. You should also be retaining your rights of authorship post project. Both of these items should be clearly stated in your contract.
This clause in Mr. Hoy's article surprised me:
Happy Cog will provide Client with all source materials and files for further reference, re-use, and modifications as deemed appropriate by Client for Client’s own business purposes.
I've had this conversation many, many times over the years, and the standard response is typically, "we just turn over the source files, it's easier."
Creatives, generally, lack spines. This curious willingness to give away trade secrets in an attempt to mollify a client is, at best, ill-advised and, at worst, bad business.
Bear with me. When you eat at a fancy restaurant, do you expect the chef to graciously provide you with the recipe? When you bought your iPad, did you find a technical schematic in the box? Or when your wife purchases a couture dress, will the garment come with the pattern and a fabric sample attached? No. No. And No.
The web design industry is the only industry I am aware of that provides source files (recipes) to their clients free-of-charge. And it frustrates me when I hear of respected companies who help perpetuate the standardization of a practice that amounts to giving away services or products for free as if there is an ethical obligation at stake.
Argue all you like, but my clients are paying for my solutions. The design and HTML files that make up the web site (solution) are the product. I don't throw in the recipe (source files) for free with the absurd expectation that it somehow makes my business relationships "easier" or "more secure".
In reality, what benefit does providing the source files to a client actually offer the client? A convenient way to find cheaper help? Peace of mind (whatever that means)?
Your source files reveal your methods of working; your trade secrets. You are under no ethical obligation to share your processes with your clients, so stop giving shit away and put the following clause in your contract:
All source files and original artwork, including sketches, digital files, and any other preliminary materials, remain the intellectual and/or physical property of Company unless purchased through payment of a separate fee.
Oh, and IVAN HOFFMAN, B.A., J.D. can suck my !*#^ with regard to Works Made For Hire.
Disclaimer: I am not a lawyer either, and I am not licensed to give legal advice any more than I am capable of balancing your checkbook. This article does not constitute legal advice; it’s intended to foster discussion and provides only general information for your consideration. Furthermore, this article is not intended to cover all the issues related to the topics being discussed.