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Thread: source file legalities question

  1. #1
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    Hello -

    just after some feedback regarding the following situation.

    I developed a website for a client in flash as a freelancer. They were happy with their finished site and I was paid.

    Since then they have employed a fulltime web-person. Now they want to update their site and so have asked me for the source flash files.

    I feel uneasy about handing them over as they hold techniques and scripts gained over years of experience and practice. I compare it to a famous baker selling you an award winning loaf of bread and then expecting him to hand over the recipe!

    Just wondering if anyone out there has experienced a similar situation? Where do I stand legally?

    Cheers,
    Ben

  2. #2
    general rule bender Gloomycus's Avatar
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    Unless it was in a contract, you don't have to give them anything if you dont' want to. Make them pay for it.

  3. #3
    http://www.flipshark.com flipshark's Avatar
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    Unless you have a contract specifcally stating the source files belong to THEM, you don't have to do anything.

    Give them the analogy you gave us and see what they say.

  4. #4
    <83)~ ratman
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    yeah, i have to agree, although i understand it can be difficult, coz they may hassle you. yada yada. just say that if they want that site updated then they need to hire you.

    you sold em the swf, not the fla!

    steve rat

  5. #5
    cartoon serial killer... crazybonkers's Avatar
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    As with the last two reply’s, if your quote did not include the Fla tell them this, and they will need to negotiate a price for it with you, if you want to sell.
    Everything has a price.
    And welcome to flashkit

  6. #6
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    Thanks

    thanks for all the support.

    all i need do now if they complain is show them the complete thread to this discussion!

    i thought it seemed like a big ask.

    cheers,

    Ben

  7. #7
    Moderator RazoRmedia's Avatar
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    moved to boardroom

  8. #8
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    Totally agree, dont get pushed into giving them the fla, i write online games and i charge around £2000 - £6000 a game, this usually covers the time spent in development 1-3 months, when i sell the game a 2nd time then i make decent money, if the clients had the source code, then they would be able to sell the games on to anyone they liked.

    Normally if someone wants the fla i would charge them 10x the value of the .swf , maybe you could negotiate a contract for maintaining the site or perhaps you could build a data driven site so that they could change the txt and images externally from the swf.

  9. #9
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    benskey2002, I think you might benefit from reading this article: SWF files, FLA files, and Copyrights. It covers this very question you're asking.

    -scott

  10. #10
    Dynamic Systems, Inc. mikaelian's Avatar
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    yes, indeed this is a very important point. One should take into account not only:

    1. the swf file (and other actual files used in the site),
    2. the fla file (and other source files used to build the site),

    but also:

    3. the licence or terms of use.

    ***

    Here are a few situations that illustrate the importance of that third point.

    a. Assume a guy orders a site and then he asks for the fla because he wihshes to make some minor changes. He pays for fla and gets it from you. Further, assume, three months later this guy's friend starts a web development business and he needs some portfolio. Can your former client give the fla to this friend and allow him to put it in his portfolio and to add incorrect credits telling that HE is the autor of that site? Of course not!

    b. Here is another situation "from the other side". Assume a client pays you good money to develop a wonderful and original site. When the site is completed other people contacting you and offering you good money for the exact clone of that site (just change the company name). If you do that the first client will find that his competitor companies, too, have similar sites which are based on the technics and elements that originally were developen by HIS financial support. Do you have the right to do this? Of course not!

    Thank you,

    Vahagn

  11. #11
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    Let me be the lone dissenter
    ...as usual

    Personally, unless your contracts and proposal FIRMLY state that they will only be receiving non-editable binaries I think the ethical thing to do is give them source.

    I know, cry cry cry about IP or whatever.
    Fact is unless you have something patentable, a copywrite will suffice for more than adequate protection.

    Also, your practices are in essence hijacking their site.
    This "pay for use" crap is for the dogs, and utterly slimy if it's not in the contract. By pulling that out of your a$$, not only do you come across as a turd but as an amateur as well, since if you knew what you were doing, you would have had the forsight to put that in writing before they wasted money on your proprietary garbage as they would have had the chance to tell you to take a hike before they gave you a dime.

    Keep in mind, I have no qualms with those that make these terms plainly stated in the contract, only for those that hide this to hijack the rights to modify what the client percieves as owning.


    Personally, I give all source material for the front end and back end to the client at the end of the project. I could care less about someone else seeing my chops, I forget more code in a year than most ever learn in their career and often, other programmers contact me because they were frickin amazed at how sweet my code is and aspire to my level. That my friends is priceless.

    [Edited by l0ungeb0y on 07-24-2002 at 03:23 AM]

  12. #12
    Lunch is for wimps. erova's Avatar
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    i'm on the same boat as loungeboy.

    most of the time in the freelance arena clients hire you to jump start their web project, not take it over for the rest of both of your lives.

    it makes sense that their project will need to be updated, regardless of who did it.

    to carry your bakery analogy a little further, you'll probably come off sounding more like the soup nazi, and i sure wouldn't expect any referrals.

  13. #13
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    Originally posted by l0ungeb0y
    Personally, unless your contracts and proposal FIRMLY state that they will only be receiving non-editable binaries I think the ethical thing to do is give them source.
    Ethically sound? Yes. In fact, I typically give all my clients the source files.

    Legally sound? Not a bit.

    My wife is into photography and photographers typically never give away their negatives and if they do, its for a very high price. This is just considered standard.

    -scott

  14. #14
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    Originally posted by nocrapchurch

    Ethically sound? Yes. In fact, I typically give all my clients the source files.

    Legally sound? Not a bit.

    My wife is into photography and photographers typically never give away their negatives and if they do, its for a very high price. This is just considered standard.

    -scott
    Comparing the nature of the work of a photographer and any form of webdeveloper is not a good comparison.

    I know many professional photographers and I agree with their practice as often times they take the picture before they get the client, also a photographic negative can be reused indefinitely.

    My stance on software in any form is thus:
    Code degrades every day that goes by, it is perishable unlike a photographic negative.

    By perishable, I'm not meaning to perish as by physically rotting, but intellectually. Technology changes each day. Every day that goes by, the language or software an application was created with becomes closer to an upgrade. Every day, a new technology becomes closer to fruition.
    By close sourcing your code and locking others out, you effectively condemn your work to perish by "intellectual entropy".

    I have been an artist all my life, ever since I could even pick up a crayon. I have dabbled in every media from illustration, painting, animation (both hand drawn and CG) as well as Flash and Photoshop and what have you. The idea of burning my work or leaving it out in the street to rot is apprehensible to me. And the notions I see expressed in this thread state that such an action is ok and in fact "professional".

    I have spent the last 3 years evolving my software into a finally tuned codebase, this year I spent months putting all that code into a unified object model to create an entirely reusable service architecture that can power any number of enterprise applications. Am I close sourcing this and charging licensing fees? No, in fact I give it to my clients in plain source format for free and will soon be placing it under the GPL and offering it free to anyone over the web.

    Why?

    Because that action will ensure that the codebase will continue to flourish over the years, that other minds will contribute and add to it and that as new technologies evolve, so shall the software with it.

    I have been thoughtfull enough to ensure that I will recieve adequate compensation for the time spent before I GPL it, but I also know that the compensation I will recieve after I release it as open source will be even greater. But, most vital and most important is that the body of work continues to survive, for what good is it to create something and then have to start over and make it again?

  15. #15
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    The legal side is firmly on the side of not supplying the client with the source files.

    As stated previously, unless your contract specifically states it, you have been contracted to deliver a particular product - a website, or a game, or such. You have delivered that product, end of story.

    This is also related to copyright issues: unless specifically stated in the contract, you own copyright over the work you have produced for a client. This means that is they want to use it in any other way, or alter it at all, they legally have to get your approval. Now obviously it is not usually worth the time involved to pursue this kind of action, but it is worth knowing.

    As mentioned, the only reason you would hand over the source files is to get onging business or just to be nice. It is VERY much like the photography anology. Coding only degrades if it is not repurposable. As soon as it is, it is of value - much more than one single website.

    I have received this info not only from people here on Flashkit, but from people within the legal profession as well, over the last 5 years within this industry.

    Cheers
    Dave


  16. #16
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    Originally posted by l0ungeb0y

    I have spent the last 3 years evolving my software into a finally tuned codebase, this year I spent months putting all that code into a unified object model to create an entirely reusable service architecture that can power any number of enterprise applications. Am I close sourcing this and charging licensing fees? No, in fact I give it to my clients in plain source format for free and will soon be placing it under the GPL and offering it free to anyone over the web.

    Why?

    Because that action will ensure that the codebase will continue to flourish over the years, that other minds will contribute and add to it and that as new technologies evolve, so shall the software with it.

    I have been thoughtfull enough to ensure that I will recieve adequate compensation for the time spent before I GPL it, but I also know that the compensation I will recieve after I release it as open source will be even greater. But, most vital and most important is that the body of work continues to survive, for what good is it to create something and then have to start over and make it again?
    And this point is all very admirably - seriously - but does not relate to the questions asked. What you have doen by choice does not govern what the legal standing is.

    By the way, I am interested in what software you have developed though... sound very exciting.


  17. #17
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    Originally posted by TheOriginalFlashDavo
    The legal side is firmly on the side of not supplying the client with the source files.

    As stated previously, unless your contract specifically states it, you have been contracted to deliver a particular product - a website, or a game, or such. You have delivered that product, end of story.
    Oh yeah... you fulfilled the contract alright.
    And in some cases such as a game or other small item, it's a fine practice but an entire website?
    More than a little arrogant. In fact, you basically say, "Use me to make all your changes or trash it".
    And to me, that's a little niave... unless of course you are totally desperate for clients/ideas and want to spend your life maintaining someones website.
    But chances are, you have never made a large scale website and are just talking out your ass.
    I build applications for corps.
    They pay me tens of thousands to make custom applications and interfaces.
    I would never think of locking them out of that when they could have purchased a brand new
    car for what I charge and have all the rights in the world to alter or modify that car to their haerts content.
    And what do you really gain by maintining copyright on an entire website?
    Nothing. I would never want to tie myself down to each and every update.
    I have better things to do and a life to live thank you very much.

    This is also related to copyright issues: unless specifically stated in the contract, you own copyright over the work you have produced for a client. This means that is they want to use it in any other way, or alter it at all, they legally have to get your approval. Now obviously it is not usually worth the time involved to pursue this kind of action, but it is worth knowing.
    Whoever said anything about not having copyrights?
    I have copyright notices placed in all my files,
    I could care less if they modify or change it, in fact I make it so things are easily modified.
    Guess that makes me a chump
    But, who's the real chump?
    The guy that does the work and moves on with code in hand and something to show for it or the guy that does the work that soon dissapears due to licensing issues?


    As mentioned, the only reason you would hand over the source files is to get onging business or just to be nice. It is VERY much like the photography anology. Coding only degrades if it is not repurposable. As soon as it is, it is of value - much more than one single website.
    Now this... this is a gem.
    Here you totally contradict yourself.
    You say that we're basicly chumps for giving away source
    and then you say the code shall be long lived as a closed binary
    where no one but you may change it, or they must pay some fee to do so
    "with your consent" Then you even say that it's not worth their time to get your permission!
    And you even say the only reason to give them source is ongoing business, when you are demanding money for them to make teh smallest of changes on their own!
    Can we say HYPOCRITE?!?!?
    I mean really, those words speak for themselves.
    This bit turns your entire arguement into dogfood!
    You know nothing of what you speak of and are just arguing because you lack any real creative blood.
    It's all about money to you and making some BS little flash toy
    and touting some license crap that you even state to be meaningless and NOT WORTH THEIR TIME!

    Step back and think for a second.
    Think about the point of this thread. This guy does a website in Flash5. They hired a fulltime web designer. That's 2 strikes. This guys work is headed for the waste basket. It's trash, toast. They'll make a brand new site and the poster's work... no more. Gone. If that's not degradation and rot I don't know what is, because that body of work will be dead.


    I have received this info not only from people here on Flashkit, but from people within the legal profession as well, over the last 5 years within this industry.

    Cheers
    Dave
    Well cheerio to you too Dave.
    I find it funny to see how people fail to get the point.
    In fact this guy states in plain english and STILL DOESN'T GET IT!

    My point was that by close sourcing your work, you condemn your work to death. As people will find it easier to start from scratch with something new rahter than pay licensing fees for a simple site update.
    Now, I'm not saying that EVERY DAMN THING needs to be open source. But, if I build a $40,000 website for a startup, I want that body of work to survive. I want them to edit it and update and upgrade on their own without having to go through me. I am an architect, I make the damn building, but I don't want to live there. I want to go on and make the next big thing, I want to expand I want to grow and I want to thrive. And most of all, I want my bodies of work to thrive as well.

    Perhaps you aren't the creative type.
    Perhaps the ownership of something destined to perish is enough for you. I see each creation as an entity, it means something to me it is an extension of my being. Only the non-creative would fail to see that the death of their code or product is the death of that idea and a part of tehmselves. And I am sorry that you can't share that vision or ever know the true sense of creation and the feeling that it evokes. But very few ever will.


  18. #18
    <83)~ ratman
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    well, after reading all these posts and learning a bit myself i would say that it all comes down to the contract. make sure it's complete and has all the necessary clauses! make sure its all discussed and you won't have any confusion later on!

    but personally i have got a lot out of this thread

    steve rat

  19. #19
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    Just a quick note as it is quite late here - l0ungeb0y - for the longest time I was totally an advocate for people keeping FLA's and charging for updates etc etc but your last post really opened my eyes.

    Thanks to all that have contributed to this thread, everyone seems very passionate about what they are speaking of and I certainly hope this doesn't degrade into a name calling match over idealogical differences.

    Night,

    .aaroncrunchie

  20. #20
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    Originally posted by TheOriginalFlashDavo

    And this point is all very admirably - seriously - but does not relate to the questions asked. What you have doen by choice does not govern what the legal standing is.

    By the way, I am interested in what software you have developed though... sound very exciting.
    I never made any claim to any legal standings.
    Unless you specifically sign an agreement that states they own the work, you are the legitimate copyright holder as you are the producer of said body of work.

    That I would never dispute.
    What I stated was that it comes across as unprofessional to withold that information from your contract. The client does have the right to know your intentions and as to the maintainability of the architecture. If the client is a corporation, they will be savvy and let you know whether or not they will require the source or even the copyright.

    My original point to this thread was to act professionally.
    Just because it is legal does not make it "right".
    Not a moralistic right, but rather a professional right,
    that is as a professional to uphold your agreement. If I want specific terms with my work, I use the contract.
    The contract spells it all out, my compensation, the terms of delivery, terms of indemnity, everything and anything I want them to know and agree too. And that includes licensing and terms for use of delivered goods.
    These concepts are used in virtually every industry, especially hollywood and IT. So for a professional to leave such language ommitted from said contract makes them seem very unprofessional and the act of attempting to extract previously unagreed to fees for licensing that was never discussed does run the high chance that the posters requests will not be received favorably by said client.

    On the flip side, I should note that the client should have had the brain to place their delivery requirements for the work to be performed in the contract.
    This entire affair smells of a small business meets the local web designer who is taking on his first clients.
    Both are in the wrong.

    What it will come down to is whether or not an agreement shall be reached. My concern is in the event that one is not, his work stands to perish.

    Once again Dave, the point here is the longevity of the body of work. By providing the client with maintainable source, they will maintain it and that source will live
    as it will be cheaper to work with the source on hand than to create something from scratch. But if you charge them for each and every change or they find his licensing costs to be unfair, the body of work stands to die.

    Also, I'm not saying to give source for everything.
    But, for a full site, it does make sense as that is their home, not yours and to lock them out of the house they have paid for is futile as they will just tear it down and call it a lessoned learned.

    And yes, the software I've developed is very interesting.
    read about it here: http://www.webfreshener.com/wfLib-1.6.doc
    Haven't had much time to really sit down and write out all the documentation, but the outline coveres most the finer points.

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