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Client wants my source material, but IMO, he didn't pay for it

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fministr
Client wants my source material, but IMO, he didn't pay for it
on Jan 6, 2006 at 10:34:29 pm

I just finished a small project for a client, which earned just over $2,000. Along with the finished project, in a recent phone conversation the client also asked for "all source materials, in case we want to make our own changes later."

I'm not comfortable with this. For a small project of this size, we didn't sit down and agree on what the deliverables would be before hand, and there certainly is no contract. It's just an assumption of his that he own the rights to all my .aep, .max, and .fla files. In my opinion, he's paid me for delivering the final project.

So a few questions for you more seasoned freelancers:

1. I've been doing freelance stuff for about 3 years, and have never had a client ask for the source materials before. How common is this in other people's experience? Has anyone ever asked this of you?

2. How do I express that I don't feel it's in my best interest to hand over all my source materials, and back up my position that I'm not willing to do so while still remaining professional?

3. If the client were interested in paying for them, what price would I ask?

I'm not really worried about litigation or anything; if I dig in my heels and don't want to deliver the source material for free, the worst that I suspect is just losing this client (which is not a huge deal for me.)

Thought? Experiences? Advise? Thanks in advance

Todd


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Tim Kolb
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 7, 2006 at 3:32:44 pm

I think you've outlined the solutions yourself...though the problem is not having an agreement on paper, not the client.

More and more clients are asking for source materials these days, the tools are so cheap that everyone wants to be in production.

Get an agreement drawn up and have every client sign it...that outlines the deliverables ahead of time and the almost inevitable sour grapes that will result from this (you, him, or both) won't be a problem in the future. If your agreement says that you keep the assets and the next client says they want them, then you get an extra fee for that and at least it's spelled out.

I'm guessing you'll lose the client instead of deliver all source materials for 2K...or you could try giving him any "dry" assets...basically short of the AE project, and see if that placates him I suppose.




TimK,

Kolb Productions,
Creative Cow Host,
Author/Trainer
http://www.focalpress.com
http://www.classondemand.net


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 7, 2006 at 7:26:02 pm

Agreeing with Tim's assessment... also, bear in mind when speaking with the client that in the absence of an agreement, copyright vests in the creator of the materials.

This may be something you discuss with the client - we're not just talking about industry practices, which may be interpreted differently be different people, we're also talking about the legal basis of ownership of creative works by their authors.


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Tim Kolb
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 7, 2006 at 11:01:20 pm

[Seth Bloombaum] "This may be something you discuss with the client - we're not just talking about industry practices, which may be interpreted differently be different people, we're also talking about the legal basis of ownership of creative works by their authors."


"Author" rights get a little fuzzy when it's a "work-for-hire". The work wasn't created as a form of personal expression. On the other hand, most clients don't know or care and explaining it to them at the end of the job rarely makes them happy, unfortunately.






TimK,

Kolb Productions,
Creative Cow Host,
Author/Trainer
http://www.focalpress.com
http://www.classondemand.net


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 8, 2006 at 12:27:14 am

Tim Kolb wrote:
"Author" rights get a little fuzzy when it's a "work-for-hire".

Granted.

But is it a work-for-hire? If there is no written agreement, to my understanding there is no presumption that it is a work-for-hire. Certainly I'm not an attorney, but I believe that in the absence of any written agreement copyright law favors the creator or author.

On the other hand, most clients don't know or care and explaining it to them at the end of the job rarely makes them happy, unfortunately.

Ain't that the truth! Best policy - no surprises!


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Tim Kolb
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 8, 2006 at 6:23:49 am

[Seth Bloombaum] "Certainly I'm not an attorney, but I believe that in the absence of any written agreement copyright law favors the creator or author."


This is probably true. Todd would emerge bloodied, but righteous...

I just cringe at the thought of working all this out after the job is done...




TimK,

Kolb Productions,
Creative Cow Host,
Author/Trainer
http://www.focalpress.com
http://www.classondemand.net


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fministr
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 12, 2006 at 6:05:59 pm


I really appreciate everyone's input on this question. I have also found this information to be helpful:

http://www.copyright.gov/circs/circ9.html#determining

In the abscense of any written contract, and since I'm clearly not a regular employee, I feel that I do retain the copyright to the original works I've made.

I'm not trying to aggrivate the issue with my client, but I have a feeling that the issue will come to a head in the next day or two. I'll let everyone know how it goes!

Todd


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 12, 2006 at 8:14:34 pm

Well, yes, copyright law does favor you.

Tim makes a good point, however, there's being right, and there's being dead right.

The real question is, what do you want out of the upcoming negotiation? How do you feel about the compensation you've received so far? (have you been paid?) Do you want to do work for this client again? Would you have given over the source materials at no additional cost if it had been negotiated up front? Is there some value to you in the raw footage and materials? Are you offended that your client wants source materials that could be used by someone else? Would you want first-refusal on future work with these materials? Do you have any concerns about what this client may say about you to others if they feel they've been treated unfairly?

It will really help in your discussions with the client for you to get as clear as you can get on what your interests are.


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Kyle S
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 13, 2006 at 12:53:37 am

Seth,

How exactly do you figure copyright law favors him? He didn't produce a project and then have this person buy it from him. The buyer contacted him and he produced a video, as Tim pointed out earlier that is going to fall into the work for hire. The fact there is not a written contract makes things more difficult, but a verbal contract is just as binding in court, just more difficult to prove. I don't think you will get any argument that the client was the one who contracted the project, meaning he is the producer, and the project is his, if he wants his tapes, he should get his tapes.

Kyle


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 13, 2006 at 2:27:03 am

Kyle,

In the absence of a license copyright law favors the creator or author. Additionally, it is common practice in many creative industries for the creator to only license imagery used in the final production. Copyright heavily favors the creators and authors, that's our system in the U.S. It used to be different.

Kyle wrote:
The buyer contacted him and he produced a video, as Tim pointed out earlier that is going to fall into the work for hire. The fact there is not a written contract makes things more difficult, but a verbal contract is just as binding in court, just more difficult to prove.

Sure, an agreement is an agreement, verbal or written. But Todd has a different sense than the client of what that agreement included. If there is information that would suggest that a verbal agreement included source materials, then sure, it could be binding in court.

Here we have a handshake agreement with two parties with different expectations as to what was included. From my understanding, guidance from copyright law is clear: It is only a work-for-hire if there is an agreement saying so, there is no assumption that it is a work-for-hire.

Whether it is good or strategic for Todd to take that guidance is a separate issue.

Typically, my written agreements specify that materials created for the project belong to the client. That would not include intermediate materials (client gets footage, not an EDL). But that's not the only way business is done.

I'm not an attorney, and anyone who is writing contracts and licenses ought to consult a lawyer with experience in these areas, not advice found on the internet.

SB


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Kyle S
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 14, 2006 at 3:13:29 am

Seth,
I don't see this that clearly. He was asked to provide a service which he did. I think there is a valid argument that the producer (client) is the actual creator. The point is why do you need the originals? Depending on what the footage is actually of , often times it is not useful for anything else. It seems to me that his point is not really that he is upset that the client wantes his footage, but that he didn't charge enough to begin with. I have done videos for performers and made videos and DVD's they sold at their shows. The camera tapes were of no use to me, they could not be used for anything else. We did an industrial for a company which was about a patented machine they used to create circuit boards, again patented machine, footage was of no use except for the project. When you are talking about footage which was taken inside of their building with their people whats the point in arguing? You don't have anybodys permission to legally use the footage for anything besides the project to begin with. Instead of the disagreement, why not try and find out if they have anything in mind for the footage he might be of assistance for? Let them know you can do other things and try and feel them out, maybe they want to toss some up on the web, though in this case I think we have well passed that point. Bottom line to me, you billed them for the tapes, they paid for them, they want they paid for.

Kyle


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 14, 2006 at 6:52:11 am

Todd (the original poster) stated:
It's just an assumption of his that he own the rights to all my .aep, .max, and .fla files

We're talking After Effects, 3D Studio Max, and Flash. What about Todd's techniques and tools for AE, what about his primitives or textures for Max... Some of these might have been developed before this client showed up. Does the client have rights to those beyond this production? How about textures Todd bought and paid for - he's licensed to use them in productions, but not to redistribute them.

We've talked about best practices for client relationships, but there is a lot of variety in what's accepted in different disciplines and industries. Graphic design & 3D is usually different than videography.

Sounds like Todd is concerned that the client will take his work to another designer. He wrote:
the client also asked for "all source materials, in case we want to make our own changes later."

IMO in graphics, in photography, in lots of disciplines this needs to be discussed up front. Standard practices from video don't apply.


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Ron Lindeboom
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 14, 2006 at 12:08:47 pm


I agree with Seth on many of the points he has made: The rules of video, film, etc., often do not apply when talking about those in the compositing field.

As Seth points out in one of his examples, compositors often rely on licensed objects, stock footage, audio, etc., which they hold the licenses to and which allow them to deliver as part of a finished work but do not allow them to give copies of the raw work to others.

Also, a client is buying your time and your expertise. They are not buying the right to devalue your work by coming to you once, getting you to do a job and get the After Effects AEP file as a deliverable and then turn around and hand off that file to a high school kid to do the next job for them for peanuts.

Me, if a client wanted my AEP file, I'd show them the door. If they insisted, I'd show them the door right away. The only exception would be if the client made it clear that is what they wanted up front and they had it in writing that those were the terms. But it's the door for anything short of that...

But hey, that's just me.

;o)

Besides, if the guy is asking for all your source materials and the AEP file (as in my example), he's not a client anyway and is about 95% guaranteed that he won't be back anyway -- so what would you really be losing???

Ron Lindeboom
creativecow.net


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Kyle S
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 15, 2006 at 12:29:43 am

"Also, a client is buying your time and your expertise. They are not buying the right to devalue your work by coming to you once, getting you to do a job and get the After Effects AEP file as a deliverable and then turn around and hand off that file to a high school kid to do the next job for them for peanuts."

Here is the real issue, we can stop hiding behind "the licenses". As a producer, I have requested the "files". We had our own programs and whatever license was needed (or the willingness to aquire them). You insist this devalues your work, the person creating the files were paid for their work. Many times I walked off of a plane, found may way into the office with a tape, started editing, at 4 in the afternoon, made changes that included altering parts of the graphic package, output a tape from the Avid sometime around 1 or 2 in the morning, and found my way to the airport to hand the tape over to the Delta Dash clerk when they reopened at 4am. Courier pic up and delivery in New York, for a scheduled airing that evening. Your telling me I have to be held hostage by you to make the changes, if you can get to it in that time frame, with whatever rush charges you decide to lay on me, but then again I guess you would have told me to walk since I had the nerve to suggest those files should be mine.

Kyle


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Ron Lindeboom
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 15, 2006 at 2:21:46 am


If you walked into my studio with all the tapes and materials needed to edit your job, that is what you would get back along with my work. You paid for it. But I will under no conditions take work which I feel devalues my work -- at least not with my eyes wide open, I wouldn't.

You are refering to editing jobs while Seth and I addressed the perspective from a compositor's viewpoint -- which is a whole different craft and discipline. What I described is in no way applicable to an editing job. When editing, I have never kept anything that belonged to a client, never.

But as a compositor, you would never get my AEP file, never. Not unless it was part of the bill and you were paying me for it and believe me, I would double or triple the bill as I know exactly what would happen with it if someone insisted on getting it.

Best regards,

Ron Lindeboom


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Seth Bloombaum
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 15, 2006 at 3:02:23 am

Kyle, I've been on both sides of that one. Perhaps I've not been burned as many times as Ron may have been. You should get what you need to get the job done, and you will, in a relationship with a vendor that is founded on trust. You're not going to get it in a "low-ball, you've delivered me what I asked for now I want more" kind of relationship.

I work with one designer frequently - she always sends me her layered photoshop files because she knows I'll be needing something slightly different than a single final composite and it's difficult to predict what exactly I'll need when I'm out for a client (lots of live event support). And she trusts, after knowing me 15 years that I'm not going to run down the street with her work and get it for a nickel or a dollar less.

On the other hand, if she or any other vendors perceived me as disloyal, it would only be their professionalism and good will that would get me through the current project, and I'd have a hard time finding good support on future projects because word gets around. They've (we've) all been screwed enough times, and the people who do it are definitely marked.

So, yes, you should get what you need. And the people working with you should get what they need too. And if you've got compositors and artists supporting your 3am stuff and willing to do it the next time too, good for you, they trust you.

This is all about avoiding an adversarial relationship. But (with some heavy reading between the lines) the original poster was asking "how do I exit this professionally, it's not smelling right." That client is gone. The client who is your best friend except when he's screaming isn't going to get much from me - I don't have patience for passive-aggressive BS, life's too short and I've already seen too much.


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Kyle S
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 16, 2006 at 11:01:31 pm

Ron,

I am talking about the graphics work, not the editing. There were times I needed to make changes in the Composites right now. I didn't have time to see if you can get to it or if you were going to feel like doing it at midnight once I pulled all of the pics and video together. I know you understand that broadcast deadlines and rushing program changes are different from coporate work. We had an in house person who did our print work and I could force them to show up at midnight and make my changes. How was that going to work for you? My graphics packages were running between $10,000 and $15,000 (3 or 4 times a year), and your telling me I would have to pay you $30,000 or $40,000 for the right to make my own last minute changes. I am not sure what universe that would be either fair or reasonable in.

Kyle


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Ron Lindeboom
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 16, 2006 at 11:25:16 pm

Kyle,

Kathlyn would tell you I don't believe in excuses when it comes to work: I once went three days straight without sleep to get a job done for a client who had been droped three days from delivery date by Computer Cafe who had the job and backed out at the last minute.

If you are good enough to do the job, then I would advise you to just do it yourself. It will save you a lot of money.

If you don't like the way I do business, then I'd advise you to work with someone else. I didn't ask you to agree with me, did I???

In business, one size does not fit all -- sorry if that offends you,

Lastly, it is easy to make all kinds of claims as to what you pay when you are a near-totally anonymous entity whose user profile is empty except for a first name.

In the universe I live in, anonymity holds little weight.

Ron Lindeboom


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Kyle S
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 18, 2006 at 3:05:01 am

Ron,

I am sorry you seem to have had so many bad experiences. Not that it matters but when I was contracting all of this graphics work I was runing an infomercial with a weekly air budget of 1/2 million to a million a week. There are reasons why I don't discuss it much and as for anonymity, thats the way I have always been (too old to change now),

Everytime we had a product change or put out a new show there was a new round of animations, graphics, and composites that were made. I never had the time or desire to build all of that, but I did need the ability to make changes in some of the compoites right now. Often if we taped a hot testimonial I rushed changes out for our Sat morning airing on USA Network. Not having the ability to do that would have been out of the question. I always used people I knew and used them over and over. The one time I had to use someone different, they gave us a quote of $4,000, I argued with the money guy that it was about $10,000 worth of work and to not use them, he said no. They showed up with the work and a bill for $13,000. We settled on $7,000 and I stuck to the people I knew.

Kyle


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Ron Lindeboom
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 18, 2006 at 5:37:36 am


I have had my share of wins and losses, Kyle. Luckily, the wins have far outweighed the losses and even the losses have taught me much -- so much so that I'd never opt to miss them if I were given the chance to replay my life. As I have tried to teach my kids, you learn far more from your failures than your successes and so there is no need to fear them.

You seem hellbent on missing the point that people do NOT have to agree with one another around here, Kyle. There are many different opinions and yours is just one.

Ron Lindeboom


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Michael D. Brown
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 9, 2006 at 12:51:15 pm

As Tim said, you've figured out your options. Speaking as a client, we have a standard contracts for creative media production that defines ownership of the finished product and source materials.
Get everything in writing, and confirm changes along the way. It won't eliminate disagreements, but will make things a lot easier.




Mike Brown
Video/Film Producer
American Heart Association


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Bob Cole
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 11, 2006 at 3:56:46 pm

[Tim Kolb] "you could try giving him any "dry" assets...basically short of the AE project, and see if that placates him I suppose."

This came up on an AE list, and Tim's solution was the one offered, with a twist:

If your AE project uses lots of plug-ins, you'll hand over the .aep, but of course you'll be legally unable to hand over the plug-ins. If the client tries to use it without you, he will discover that he still needs you.

-- Bob C


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spooky
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 20, 2006 at 9:29:41 pm

This is an intersting thread. For example, when I am working on an Flash project, it's always assumed (rightly or not) that I'll be handing over the .fla's. With AE or Maya, I don't think I would feel comfortable handing over file. I think it may be that we consider motions graphics work to be "fixed" projects, whereas with something like Flash a client is almost always going to be adding or tweaking something over time and generally without my input. It's like with Flash they're buying the code and with AE etc it's the final product. Or something.

With any project like this, I think the problem starts to arise when you are using various fonts, plug-ins etc. Not to mention, what client is going to make sense out of my my huge convoluted AE file that consists of precomp after precomp!


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carnegis
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 20, 2006 at 10:46:00 pm

Unless we have an agreement otherwise I keep source files like AEP, Photoshop, etc. The client owns and pays for shoot tapes and final masters. The way I look at it is that the final product is the house and the aep file is the blueprints, seperate copyright and seperate product. If a client want to get the source file at the end then I would put some sort of fee in there and it would be in the original contract stating such.


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mark harvey
Re: Client wants my source material, but IMO, he didn't pay for it
on Jan 26, 2006 at 12:17:51 pm

I would never hand over AEP files, under any circumstance. So I am supposed to create the layered text effects and shot treatment, then the company hiring me can go to some rookie to change the text and replace the footage for subsequent use, come on....be real.

That would be like Picasso creating a paint by numbers for others to replicate his work.

Mark


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Gary Taylor
Re: Client wants my source material, but IMO, he didn't pay for it
on Feb 1, 2006 at 10:16:30 am

Over the years I have almost always refused to give my source materials to customers under these circumstances. I have found that it has not been in my best interest to do business with those who wanted to aquire my source code and techniques without paying extra for it. On the rare occasions when I have yielded I have always regretted it in the end.

As a producer I do sometimes contract with others to deliver a work for hire. Usually this involves using their work product to produce something that requires technical skills they don't have, and it is always agreed upon in advance. Even then I almost never ask for project files, just the raw assets. Because this agreed upon in the original contract, it up to the creative professional to price work with these assumptions in mind.

For a customer to ask for this after a production is complete is quite presumptuous. Depending upon what you are doing you might find yourself competing against your own work at some future date. And to make matters worse it also likely that customers who would do this are the same ones who played hardball to get you to lower your rate in the beginning.
Gary


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