Topic: Contract Question (Page 1 of 1)

I am currently in negotiations with a client regarding contract. The sections in questions regards rights of work completed.

quote:

---

GRANT OF RIGHTS: Upon receipt of full payment, Ramasax grants to the Client the following rights in the finished Work:
For use as: Web site and online applications (customer forms/ feedback/ Information resources, etc.).

With respect to the usage shown above, the Client shall have exclusive rights.

RESERVATION OF RIGHTS: All rights not expressly granted hereunder are reserved to Ramasax, including but not limited to all rights in sketches, comps, or other preliminary materials.

ADDITIONAL USAGE: If Client wishes to make any additional uses of the work, Client agrees to seek permission from Ramasax and make such payments as are agreed to between the parties at that time.

---

The client wishes to have full rights to all materials I am to create, which is to include a logo and other various illustrations.

I have never had a client ask for this before and was looking for some advice on markup in pricing, because I have no idea what to ask for. On one hand I do not want to ask for too much, but on the other do not wish to sell myself short.

edit: Keep in mind the business is inbetween the small to medium size category.

Any advice is appreciated,

Ramasax

(Edited by Ramasax on 04-22-2005 07:02)

I have never ever even attempted to claim ownership over any of the work that I do for a client. I wouldn't even want to try. The legal issues with trying to retain rights on works that you have handed off to a client boggle the mind. Hand it off and be done with it. With you retaining rights on the work you are asking for the client to bug you. Hand off the final package and close the account. Anything else is then extra.

Were you to sugest to me as a client that I do not have full rights over the delivered product I would walk out. No questions asked, I would think you were planning on dicking me at some later point, or that you didn't know what you were doing. In either case it is not a situation I would put my business in.

What the client gets: All rights to all works done and handed off. In the case of a logo they would also get the vector art files for them to use in the future.

What I get: The right to use the designs and other material that I have created for them in my promotional materials.

Pricing. That is a bit easier. $25-$35 an hour. Quote them at your estmated time and then pad it 20%. Small and medium sized businesses tend not to like big prices, so it sometimes makes it easier to swallow if you break it into small pieces.

Dan @ Code Town

I was under the impression this is the way things worked. That as a freelancer the "work made for hire" laws did not apply, and that all rights to finished work were retained by me. I had read on numerous occasions designers selling the full rights at a later time for a much higher cost, although it always seemed a bit off to me to do something like that. I do not plan on 'dicking' anyone, but when I had a lawyer friend help me with the contract he suggested it. hehe, go figure.

What you say makes perfect sense, and considering most of my clients are small to medium sized business' I don't want to scare them off, rip them off, or make them feel like I am taking advantage of them. I changed the contract to read:

quote:

---

GRANT OF RIGHTS: Upon receipt of full payment, Ramasax grants to the Client full and exclusive rights to the finished Work.

RESERVATION OF RIGHTS: Ramasax retains the right to use finished Work in materials of a promotional nature.

---

And they bit. Works for me.

Thanks for the much needed perspective.

Now what to do with the other clients I have who have signed the contract as it was originally written... Should I sign off all the rights to them? It is fine by me, but does anyone else have another perspective? Anyone not agree with WarMage, or is that the general concensus in the community at large?

Thanks,

Ramasax

Ramasax: your original way of retaining right has long been the standard design work and photography.

There is such a glut of talent out there in both these fields that WarMage's model is becomming much more common, to the shock and fear of the old guard I'm sure!

Hard to say if the new trend is for competitive advantage over the old school, or if it's a genuine feeling that it's the right thing to do. "right thing" is debateable, the market decides, but it's certainly devalued the work to a huge degree, at least fragemented the market much moreso.

I personally transfer ownership/rights upon final payment for graphics work, and the photographer I use does the same (much more rare I think). At this point in time when there's people out there doing things both ways, this way builds relationships better and increases referrals. I felt raped and pillaged when I was looking for some stock from local photographers, they wanted 150-250 per shot for one time web use. I don't have a problem with that but I'm gonna use the guy that will give me full/exclusive rights for the same fee, if I can find that guy market decides.

Corporate/Business Lawyer.
Most if not all will 'hear' you out for 20 - 30 minutes at no charge.
Yellow pages... or a referal.... make an appointment.
Write down every question that's running thru your head. Cull and cull again. Priorize the 'cream' write them down. Take them with you. Make full use to the time available.

NoJive,
When you talk to the lawyer's office, make sure this is the way they work. Most of my experience with lawyers has been that they start charging you from the minute you walk into their office or they pick up the phone to talk to you, and they round up any time they spend. So if they talk to you for ten minutes, you will be charged for fifteen or thirty minutes depending on how they charge. I have even had more than one lawyer start asking me questions about problems with their computers and then send me a bill that included that time.

Make sure you and the lawyer agree on what you are getting and what you will pay before you start talking to them.


Ramasax,
It is not that work for hire laws do or don't apply when you're working freelance. Who ends up owning the product depends on how you work out the contract. If you spell out in the contract the you retain ownership then the peice is not a work for hire. If you specify in the contract that you are creating the piece for the client, then the peice is being created work for hire. The simplest way to think about this is to assume there are really no provisions in copyright law for transferring ownership of a copyright. So the person that the piece was created for retains the copyright.

It is good that you and the client are having this discussion now so that you can make it clear in the contract what will happen to the product when you complete it and there will be fewer mis-understandings then.

As JK said, everyone used to assumed that the artist retained ownership of the product after the completion of the contract and there are still many artists who insist on working this way. However, more and more clients are taking the attitude that if they can't have complete control of the product after the end of the contract, they will find someone else. And since there are pelnty of artists who would rather work and get paid than not work and retain ownership, it's easy for the client to find someone else.


.

-- not necessarily stoned... just beautiful.

hyperbole,

In my quest for brevity... some perhaps, wrong assumptions.

The scenario you describe transpires or should transpire, only, after you have hired the lawyer. I do understand completely your warning and have experienced what you describe but only after the lawyer has become your 'Counsel/Agent of record' I think is the term.

From Rama's post I 'assumed' a client who, by the contract language, appears to have or at some point had, legal resentation or, from various sources has cobbled together his/her own contract.

Either situation, the latter being the most dangerous, imo requires 'Professional' advice.

That said; like any other service or commodity you shop around for legal services. Word of mouth is one of those shopping methods.

If Ram and I live in the same town/city and know each other and Ram expresses his concerns about the contract he's negotiating I could be in a postion to say... '..I know a lawyer who might be able to help you.' I call my lawyer, advise him/her I have a friend who may or may not need some legal representation. I've given him your name and number so if you get a call from so&so... you'll know what it's about.

Ram makes the phone call... ASKING FIRST..'Do you charge for an INITIAL consultation? ' ...makes an appointment based on a 'Yes or No, answer. Assuming 'No charge for the initial consultation' (usually 20 -30 minutes) the meeting takes place. Introductions are made..Ram reminds the lawyer I referred him...and confirms 'no charge for initial consultation.'

Ram concisely but briefly explains 'I don't really know if I need counsel for a contract I'm being asked to sign...specifically I don't fully understand the possible ramifications of this part. ~handing over a copy of the full contract with the section in question clearly marked and hi-lited..~ '...is this pretty standard language?

After reading that specific bit and what he/she has gleaned from asking Ram a few questions... the lawyer will have a pretty good idea if they're dealing with a contract that's worth a ton of money...or someone (in this case RAm) who is just wanting to know if they're setting themselves up.

If the lawyer says; '... I'll have to charge you to answer that'...but doesn't explain why...(like... that's some kinda complicated legalise there).... thank him/her for thier time and be on your way. You've got your answer. Sign at your own risk.

Personal experiece suggests however the lawyer will say something like; '... no that clause is standard stuff.' OR.... 'Clever bastards... they've got you nailed no matter which way you turn and their assess are covered at the same time... I wouldn't sign it...'

You then go into the next phase. '..what do you suggest I do?' After listening to the 'suggestion' you move to ' how do you bill for your time *what DO you bill for and what might I reasonably expect to be billed for something like this?*

If Ram is not comfortable/satisfied with the answers or lawyer I've referred him to... he takes the same questions to another lawyer.

Generally and again personal experience suggests you'll get an answer like...'you need legal counsel' or '...pretty standard stuff I don't think you need my services at this time.'

"How does your billing work...what do you bill for?" are very very critical questions.

In a former life I was involved in securing international patent rights
which required Counsel in several countries. The 'How does and What DO you bill for...' were the questions that had to be satisfied.

When we were shopping for Counsel part of the initial consultation went something like this: Paraphrase. '...Your hourly billing rate? And what do I get for that? And a very, if not most critical question.. 'If you don't have the answer to a question what happens?'

The only acceptable answer goes something like this... if it's not similar to this move on.. don't forget.. you're still 'shopping.'

'If I cannot answer your question I'll do some research and get an answer to my satisfaction...advise you if I think we should further look into it. If I do look into it further you will be billed accordingly. There will however be no charge or billing for my initial research because (here's the part you're listening for) '..Because I see no need for you to pay for my education/ignorance.'

If the lawyer, in so many words says he, bills for answers he/she doesn't have. Your reply is. '... So you want me to pay for your ignorance.'

As for the lawyer who sent you a bill the result of a phone call during which you supplied answers to HIS specific questions? Quite seriously, I would have sent him a bill for 'x' many minutes based on my hourly rate..a copy of his bill to show him when-where-duration etc.

He/she calls and does a flip out... 'hey.... you charge for every minute you give me advice via phone or in your office. Why do you think my advice should be free?'

Anyway.... lengthy yes... but hopefully of value.

NoJive,

A lot of good adice there... I particularly like the way you phrased

quote:

---

ASKING FIRST..'Do you charge for an INITIAL consultation? '

---

.

-- not necessarily stoned... just beautiful.