Hi folks,
I use the AIGA Standard Form of Agreement for Design Services found on AIGA’s site here:
I have not modified the main content of the agreement and have been using this contract for over two years with a client. I had my attorney review this when I formed my company and there were no problems.
In that form, by default I always assign all Exclusive Rights to any work that I perform for my clients. Here are the actual terms:
[INDENT]IP 2.A (1) (c) Exclusive license, with modification rights:
IP 2.3 For ____ print, ____ online/interactive, ____ three-dimensional media:
Designer hereby grants to Client the exclusive, perpetual and
worldwide right and license to use, reproduce, adapt, modify
and display the Final Art solely in connection with the Project
as defi ned in the Proposal and in accordance with the terms
and conditions of this Agreement.
[/INDENT]A new project was planned with my client, and a new president and/or board of my client responded to the materials I sent with the following:
[INDENT]We have a few contract revisions. Please review and send a new contract.
Please provide references.
Definitions 1.5 - you state that if you develop any tool while working on the project, you own it. If we pay you to work your work products belongs to [us].
Section 6 - Accreditation/Promotion - If we pay you to develop anything, the copyright is ours, and while you may want to negotiate for an advertising line “Developed by [company]” with a link to your web site, that’s fine, but you do not own copyright rights, and the length of time your ad line is posted is negotiable. This also contradicts section 9.1.a.
Section 8.3 No Solicitation - This paragraph is unenforceable contradicts 8.4 and should be removed.
Section IP 1.4 Original Artwork - This should be removed, if we pay you to develop anything, we own it. You may negotiate rights to a copy, but we own it.
Seciton IP 1.5 Tradmarks - contradicts IP 1.4 and assumes the developer has the original rights. Again, if we pay you to develop it, we own it.
Please call me if you have any questions
[/INDENT]The tone of this response is awkward, to say the least. I responded in depth, detailing each section and why it was needed and/or included. I also provided my client and their board with a direct link to the AIGA site to help promote transparency. When I talked with the president, there was no change in the opinion and the president kept alleging that “something wasn’t right” with my contract.
My take is that my client does not understand how independent contractors work and/or how business is conducted today.
Do any of you have any suggestions on how to mitigate this situation?
I have copied my response below for your reference.
[INDENT]Document Clarifications
I will touch each of the comments about the specific areas below and hope to clarify what they serve as they are written.
- Basic Terms & Conditions: 1.5. “Designer Tools.”
Tools as defined here refers to software or Web applications that I have programmed or crafted to aid in the creation of the [Client] Web site. If I develop a Web application to use in Web sites throughout my business, this means that you cannot claim ownership over the application or tool I developed to help improve my work and services.
Perhaps this analogy will help: My parents have been lifelong upholsterers. If a customer brought a couch to be repaired, and my father used a special wood brace that he had designed through the years to help reinforce the furniture better than its original manufacturer, the customer could not ethically or legally claim that my father’s custom wood brace was his and say that my father could not use the brace again because he did not own it. This is essentially what this section defines.
Further clarification on Designer Tools can be found on page 17 of the Standard Form of Agreement for Design Services available from AIGA. - Basic Terms & Conditions: 6. Accreditation / Promotions.
Section 6 is to ensure that I, the Designer, have the right to promote my business by showcasing the work I performed for [Client] (i.e., “[retaining] the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.”
In regard to an ad line on your Web site that links to my company page, I do not require one and I would advise against it unless you see some benefit in doing so. I only provide a link to my business page on my client Web sites if they request one. This would be negotiated during the design process and approval of the Final Art.
Further clarification on the Accreditation / Promotions section can be found on page 11 of the Standard Form of Agreement for Design Services available from AIGA.
In regard to copyright, the agreement has not changed from the original and currently active contract. The rights are defined by the Xs in IP 2.3 of Schedule A: Intellectual Property Provisions. - Basic Terms & Conditions: 8.3. No Solicitation.
This is a standard clause in Agreements between parties to ensure that a Client is not solicited for the same services by an employee of my company after he/she has left my company. It is difficult to prove such an act, but it is enforceable.
Further clarification on the No Solicitation section can be found on page 12 of the Standard Form of Agreement for Design Services available from AIGA. - Basic Terms & Conditions: 8.4. No Exclusivity.
This section does not contradict 8.3 No Solicitation because that item is concerned only with an ex-employee (Designer) of my company. This section essentially ensures that both the Client and Designer are free to work with others and are not bound to only work with each other in regard to Web services exclusively. For example, I am [a webmaster in higher education]. If this section were not in the contract and a Client wished an exclusive contract with me, I would be forced to reject the Client’s offer because I provide similar services in a full-time capacity outside of my work in my company at the college.
Further clarification on the No Exclusivity section can be found on page 13 of the Standard Form of Agreement for Design Services available from AIGA. - Schedule A: Intellectual Property Provisions. IP 1.4. Original Artwork.
Please note that IP 1 defines rights to deliverables other than Final Art. Final Art is defined in Basic Terms & Conditions 1.6 as “all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.”
Further clarification on the Intellectual Property Provisions can be found on page 17 of the Standard Form of Agreement for Design Services available from AIGA.
In regard to copyright, the agreement has not changed from the original and currently active contract. The rights are defined by the Xs in IP 2.3 of Schedule A: Intellectual Property Provisions. - Schedule A: Intellectual Property Provisions. IP 1.5. Trademarks.
This section does not contradict IP 1.4. This section is concerned with the production of materials that represent a trademark, such as a logo, and how the ownership rights are transferred from the Designer to the Client upon the completion of the services. The section also protects the Designer from problems arising out of the possible misuse of a trademark by a Client.
Ownership, Copyright, and Licenses
For your reference, standard design practice as outlined by AIGA, the professional association for designers, ensures that the Designer retains ownership of Original Artwork. Original Artwork that is requested specifically for purposes of branding or other reasons from a Client is negotiated on a case-by-case basis. As it stands with the current [Client] contract, [Client] is assigned exclusive license over any Original Artwork I produce for the Web site. This means that I cannot license it to others, and I cannot generate additional licensing income from other sources with the work, but I still retain ownership of the Original Artwork. If a case arises that [Client] wishes to obtain a full transfer of intellectual property rights for any Original Artwork, then we can negotiate those terms and additional costs at that time. [Client] would only need to negotiate for these for work that [Client] plans on using as a trademark (e.g., a logo) or a branded image to be used in print or other marketing materials.
For your reference and clarification, IP 2.3 is copied below, which grants [Client] the exclusive license, with modification rights for print, online/interactive, and three-dimensional media:
[INDENT]Designer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.
[/INDENT] Further clarification on the Intellectual Property Provisions and licenses can be found on page 18 of the Standard Form of Agreement for Design Services available from AIGA.
[/INDENT]