Entrepreneur - - By John Tabita

Retaining the Copyright: Protecting Yourself or Holding the Client Hostage?

Dolly Parton wrote and recorded her hit song, “I Will Always Love You” in 1974. Soon thereafter, Elvis Presley approached her, wanting to record it himself. Dolly was thrilled … until Presley’s manager told her it was “standard procedure” for the songwriter to sign over half of the publishing rights (and half the profits) to any song Elvis recorded. Parton refused. Over the ensuing years, she imagined how an Elvis version would have sounded and wondered if she’d made the right decision. But in 1992, the song was recorded by Whitney Houston and used in the film, The Bodyguard. It became a huge crossover success, propelling Whitney to stardom and making Dolly millions in royalties.

Dolly Parton chose to hold onto her copyright, and it paid off. You may not be a budding songwriter wondering if you should do the same. But as someone that creates content, how should you handle issues of ownership and copyright? Retain all rights, like Dolly? Or is it more realistic to assign the copyright to your client?

[Disclaimer: I am not an attorney. This article is not intended to take the place of legal advice. The information here applies to U.S. Copyright law and may differ from country to country.]

U.S. Copyright law states that the creator of a work owns the exclusive rights to that work from the moment it’s put into some tangible form. Simply put, copyright is the “right to copy” (i.e., reproduce) an original creation. The mere fact that the client paid for the work does not automatically assign him ownership. This means that, unless you are working as an employee rather than an independent contractor, anything you create—be it logo, website, or some PHP code—belongs to you … unless you specify otherwise.

This is why having a contract is so vital. Lacking one, the client might assume everything you created belongs to him. Your contract should state, in no uncertain terms, what belongs to whom. That begs the question: Should I retain the rights to what I’ve designed or built?

How that question gets answered depends largely on who you’re talking to. I recently had a conversation with Jon Valk of Jon Valk Design. He explains his reason for retaining full rights to all his print designs:

… for me the biggest reason to retain copyright is to prevent my design from being butchered. Clients buy reproduction rights, not the physical design. It’s always been that way in my experience (with print design, anyway). The GAG [Graphic Artists Guild] totally supports this and says it a lot better than I do here. Protecting the integrity of that design is the biggest reason to hold onto the copyright. My designs equal my reputation. If a client wants to pay me enough for me to give that up, I would do it.

Coming from a print design background, I understand this completely. If a client has full rights, not only can he reproduce the design, he can also modify it. Once I transitioned to web design, however, I found that my thinking needed to change. My first few websites were like “works of art” in my mind, but my clients viewed them as a business tool, not art. So surrendering control of my design and risk them breaking it (which a few did) was a necessary part of the web industry.

With print design, it’s easier to maintain this copyright model. The Internet, not so much. But before you give away the entire farm, consider how your client might reuse what you’ve created. For example, it’s not unreasonable for your client to expect to be able to “reuse” your logo design on his advertising and marketing material. He’d also expect to reuse the database-driven membership management application you developed, and not have to pay you a fee each time he logged in. But unlike that unique logo, the web application has the potential to be not merely reused, but resold. Assigning him full rights means he could potentially [1] resell the application himself and not owe you a dime and [2] prevent you from reselling the application to another client. That’s not a good position to be in.

Be sure your client understands his usage rights upfront; otherwise, you both may be in for an unpleasant surprise. Having a client feeling like you’re holding his design hostage may land you more ex-clients than current ones. As a rule-of-thumb, here’s my take on what I would and would not give away:

Items I would give the client full usage rights to:

  • Website front-end design (i.e. design, layout, graphics, text, and HTML)
  • Marketing collateral and corporate identity such as logos, business card, brochures, etc.
  • Source files for any of the above (i.e., .psd or .fla files)

Items I would not give the client full usage rights to:

  • A unique photograph or illustration
  • Any code that actually qualifies as being an application
  • Anything that could be resold by me or the client

What about you? Are usage right something you haven’t give any though to? What do you keep and what do you assign to the client? Post your comments below.

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