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SitePoint tweeted a while back about a question a forum member had: whether or not he should release the layered PSD files to a client he has. He found the question odd, and wanted to know if this is a “normal” thing for clients to ask for, and what the “normal” reaction should be.

I participated in the discussion, and such a general question does bring about some interesting answers. So far, no one’s gotten all over me (which is a good thing, I think), but the different perspectives are refreshing.

Truly the answer lies in two simple things: the contract, and the relationship.

The answers have been supplied by not only designers, but also non-designers – which really puts some great perspective on the whole thing. And it’s true – many people who hire a designer believe that when the project is completed, they own everything – lock, stock, and barrel. Unfortunately, this is where you (the client) are wrong. Most of the time, anyway.

I came across this very issue over two years ago, when I had great potential client waiting in the wings for me. We had awesome discussions, our “working” chemistry was terrific, and I had all kinds of wonderful ideas for his site. It was a project I was excited to begin. I passed him the contract and [insert sound of needle scratching record here] he had an issue with my copyright clause. The discussion that ensued was very interesting, and led to me really thinking hard about my policies on copyright, and who retains it.

So first, let me say this: the United States has an entire section of their government policies on copyright placed on the web, readily available for all to read. They’ve even managed to rewrite the “legalese” versions into plain English, so you actually understand what they mean. There’s a couple I will touch on, right here.

Keep in mind, I am not a lawyer, and nothing I say here should be taken as legal advice. This is the US Law as I understand it, and as how it’s been explained to me. So please feel free to correct me if I am wrong – do some research of your own, and don’t take this at face value – rather let it be something for you to chew on before you go see your own lawyer and get the real legal advice (you DO have one, right?)

But basically, the whole thing boils down to three things: 1) who first created the item in tangible format; 2) what was the working relationship at the time the item was created; and 3) what does the contract say?

Option 1 is pretty simple. Generally, it’s your designer who first created the item in a tangible format (“tangible” meaning it can be seen, heard or touched. Saying an idea to someone does not count.) This means that the things your designer creates for you – background images, little icons, even how the site is laid out – all belongs to the designer. If the designer custom-writes a script for you, generally, that script belongs to the designer. There are some things a designer uses that cannot be copyrighted to anyone – such as CSS, and particular layouts (for example, a website with a header, footer and content flanked by sidebars cannot be copyrighted.) But the *design* of this layout can. If you want to get all “poetic” about it – The Catholic church commissioned Michaelangelo to paint the ceiling of the Sistene Chapel, and paid him pretty well to do it. But (public domain laws aside) Michaelangelo is the artist, the one who created the work and the one who owns it. Yeah, it’s in the Sistene Chapel, but they own the ceiling – not the image on it. They just use it because it’s freaking awesome.

Option 2 means, is was it “for hire?” Now hold onto your horses. Just because you hire someone to do something for you does not constitute the US Government’s definition of “work for hire.” Basically, if you design something, and you work as an employee of a design firm, then any work you do is “for hire,” and is copyright to the design firm. If you have a very specific idea for an image, and have it drawn out to pretty much as far as your talents can take you, and you hire someone to “clean it up” YOU are the owner of that image (remember: tangible format!) and the artist you hire to clean it is under a “work for hire” agreement. Keppin mind though, that “Work for Hire” means you must have an agreement in place that specifies this. If you don’t, it’s really easy for the person you hired to “clean up your idea” to steal all credit – and win in court if it comes down to that.

If you have a very specific idea of what you want your website to look like – this is where it gets tricky. In steps Option 3.

The designer should always provide a contract. The contract should state who owns copyright. If it doesn’t, things could get ugly. Generally, by default, Option 1 would take precedence, and you could safely assume the designer retains all copyright. But what if you came up with some stuff? What if the “tricky” parts of Option 2 come up? Copyright is assigned to the creator by default – unless there is some kind of agreement that specifies who copyright goes to.

This means if you’re a designer, and you just assume copyright should go to the client when you’re done – you’re wrong. You have to sign something that conveys your rights to the client.

It also means that, if you’re a client who hires a designer to create your site for you, and you think you have the right to take the images from the website and use them for the logo on your new soft drink, you’re wrong.

The end result is – read your contract. Don’t just sign it blindly. READ IT. (Believe me – if I were a lesser person, I would have put a clause in my contract years ago that said “upon completion of the project, Client will pay Designer the estimated cost of project times $100,000.” As many clients as I’ve had in the past that don’t read the contract and sign it anyway – and yes, you can tell – I’d be a very wealthy woman right now LOL) The time for negotiation on the contract is before you sign.

Let me say that again, in case you were kind of “spacing out” – because this is the most important part of the article:

READ THE CONTRACT AND ASK FOR CHANGES BEFORE YOU SIGN.

As I said in the discussion on the forums, “Good fences make good neighbors.” It’s an old adage because it’s true: you set boundaries so you know where not to cross. When you know where not to cross, then you know where you stand – and the relationship is great. I don’t know a single designer who isn’t willing to negotiate the terms of their contract BEFORE it’s been signed. But the relationship falls apart when negotiations are attempted AFTER the fact. Contracts are not there to try and squeeze more money out of you (as a client) – it’s there for protection, for you as well as the designer’s. It sets those boundaries.

Never assume anything. Pay attention to your contract. Read it. Ask questions. Request changes that you think are fair. Don’t go into it blindly – it’ll bite you sooner than you think. And know that if the designer did not transfer copyright to you, or you didn’t sign an agreement stating that this was “work for hire,” then consider yourself the Sistene Chapel. You might have the work, but it’s not yours to do with as you please.