Whose property is it, anyway?
Recently, a local entity asked me to create a web site for them. Needing the work, I agreed to enter an approval process so that their parent company would approve my payment.
At the end of the process, I was presented with a letter of approval which also stood as a contract. The contract contained this clause:
The Contractor (that’s me) acknowledges that any and all products delivered to the Corporation (that’s them) under this Agreement, including without limitation, any reports, are works for hire. All documents, reports, analyses, drawings, designs, blueprints, photographs, sketches, software (including without limitation, enhancements, modifications, customizations, fixes and workarounds to software) and other materials (the “Work Product”) prepared by or for the Contractor in the course of the Contractor’s Services shall belong to the Corporation, and the Contractor grants, the Corporation all right, title and interest, including copyright and trademark, in the Work Product.
Ahem.
What this means is that the “Corporation” owns everything, lock, stock and barrel. Any bits of CSS coding, including that which creates a certain look and feel, the use of any and all images, belong to the Corporation, right down to the last (God forbid I ever use one) spacer GIF.
Consider this bit of code, of which I am particularly fond:
#content a:link { text-decoration: none;}
#content a:hover { text-decoration: underline;}
(This piece of code clears the regular underline from a text link within a content
If I were to use this bit of code on the next client’s site, and the the first client finds out, they have the right to take me cease and desist. They can even sue me and my new client — which would put me in one hell of a pickle, both client-wise and financially.
In short, the above Intellectual Property Rights clause of the contract could prevent me from re-processing individual bits of code that are my “bread and butter.” If I can’t use similar code from one client to the next, I would only have one client.
I mean, what am I going to do? Tell the new client, “I can’t use that code — I sold it to so-and-so — try something else”? That client is going to try a new designer/developer.
In my line of work, Intellectual Property rights run something more like this: 1) anything the client creates as content, either through a submitted content document or through a provided third-party Content Management System such as Joomla! or WordPress, belong to the client; 2) any third-party software supplied is bound by its usage agreement (EULA) that the user agrees to when they install the software, and that property belongs to the creator of that software: no one single person or agreement can dissolve that without the expressed permission of the software owner; and 3) any code beyond third-party software that gets my client from blank pixels to a web site that works, through any method I choose, through any style I choose, through any language I choose (such as PHP, MySQL, XHTML, CSS, or more) — and my style of use — are strictly my property, because my mind created it, my mind implemented it.
While it is true that I may use techniques that I have learned from others, the fact remains that I perceived both the problem and its solution through my lens, my style and skills — style and skills that the client doesn’t have.
As an independent designer, I have to be able to point to my work in order to attract clients. I have to be able to reuse and recycle code as necessary, as it would be pretty silly to have only one web site on the entire Internet that has the links styled in the example I gave! While there many different ways of producing this desired effect, it still boils down to the basic lines of code that I present here. Some clients want that look and feel, while others don’t; the point here is that I have to retain the right to use it as I see fit, not some greedy corporation.
Needless to say, we couldn’t come to an agreement (this wasn’t the only reason, but it was primary), and the client has gone on their merry way, looking for some desperate idiot that doesn’t care about his career — or his rights — to code their web site to their specifications. It’s unfortunate, to be sure, but we’re all better off for the choice.
(73.8 — 49 — 24.8)
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by Have Coffee Will Write » SELLING YOUR SOUL TO THE COMPANY STORE… 20 May 2006 at 12:49 pm
[...] Will Kessel and I talked about this Wednesday evening at the Blogger MeetUp and he’s decided to blog what we talked about. Will wisely walked away from this contract. But not everybody can do that. He writes: [...]