Losing your rights to your professional portfolio

Many creative professionals give up their rights to their professional portfolios when they sign employment contracts without realising it.

This article was inspired by a discussion with a colleague about creating and protecting a professional portfolio. One of the challenges facing creative professionals is building and maintaining a current portfolio for future reference. In this particular conversation, we discussed whether someone could include work produced while employed in a professional portfolio?

I suggested that he import his blog posts and articles from various sources into his Medium profile using the “Import story” feature. It got me thinking about the copyright implications of doing that so I did a little research.

Your employment contract is your first challenge

It turns out that, as an employee, you probably gave up your rights to your writing. Many employment contracts have clauses like this:

Employee acknowledges that any original works of authorship s/he creates, whether alone or jointly with others, within the scope and during the period of employment with Company, shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such work is not, by operation of law, a work made for hire, Employee hereby transfers and assigns to Company all his/her right, title and interest therein, up to and including copyright.

There is often another clause that deals with something called “moral rights” which the contract may require the employee to waive or otherwise give up.

For writers who put a huge amount of effort into their work and take pride in their literary brilliance, clauses like this are analogous to amputations and this is why:

  1. The “work made for hire” clause has the effect of saying that your brilliance which you create as an employee actually belongs to your employer and you don’t have any rights to it from the moment you start populating that blank screen.
  2. If your contract has a clause that requires you to waive your “moral rights”, that basically means you give up your right to be known as the author of your professional work.

The effect of these kinds of clauses is to take your work from you and create a fiction that you didn’t create it and a legal fact that you have no rights to do anything other than admire it from afar. It limits what you can add to your professional portfolio because clauses like this limit –

  1. What you can claim credit for; and
  2. What you can republish without permission from your employer.

In other words …

You didn’t write this, it isn’t yours, just keep working

How you can salvage your professional portfolio

There are other options for building your portfolio which could work. One option is to simply point to an author page of the company blog that lists your articles by author (if you have that option). You could create a collection of links to “your” articles that implies that you are the author of those marvelous works.

The best way to avoid this situation is not to sign a contract that contains those legal scalpels. At the very least, hold on to your moral rights so you can publicly assert that you wrote those works.

Best case scenario

You negotiate clauses that give your employer co-ownership of your work (most employers would insist on this level of control) while retaining co-ownership yourself. That gives your employer the security of knowing it can do what they want with your work (because, after all, it is paying you to write that stuff) and you have the rights to do stuff with it all too, such as include it all in your portfolio.

Don’t assume you have the rights

Unfortunately many of our preconceptions about our rights to our work are misinformed and many creative professionals routinely give up their rights to their work when they sign their employment contracts. The power dynamics are usually against you and you may feel you have little choice but to agree if you want the job.

At the same time, it is a good idea to do the following if preserving your professional portfolio is important to you:

  1. Read your contract and identify the clauses that relate to your rights to your work.
  2. Discuss the clauses with your (prospective) employer and negotiate better terms before you are too far down the road.
  3. If you find you have little choice, be mindful of the clauses’ scope and ensure that the clauses don’t encompass your otherwise unrelated work simply because you don’t make clear distinctions between work and non-work stuff.
  4. Most importantly, don’t assume that you have no say whatsoever. The little secret is that most things tend to be negotiable to a degree.

This article was originally published on Medium on 2015-12-25 as “When you signed away your rights to your writing

A developers’ guide to GPL

If you are looking for a clear developers’ guide to GPL, Richard Brest has published a terrific guide to GPL with WordPress developers in mind.

Richard Best has a terrific guide to GPL for WordPress developers along the lines of the famously simple “human readable” Creative Commons license explanations on his site, WP and Legal Stuff, in his post titled “A human readable summary of the GPL“. He actually has two versions, both of which are worth taking a look at. I like his version modelled on the CC license explanation format:

A human readable summary of the GPL by Richard Best
A human readable summary of the GPL by Richard Best

Best has also published “A Practical Guide to WordPress and GPL” and it is available in three packages. The top package is the “business package” which includes –

access to a terms of use builder through which you can build draft online terms of use for your WordPress commercial themes or plugins shop, with open and honest GPL licensing as well as protections for your business.

The terms of use builder isn’t exactly revolutionary but what I like about it is that it is designed for a specific niche: WordPress theme and plugin developers who license their products under GPL. Best also released a demonstration video which reveals a nice, clean interface and a great looking end result. You’ll have to view the video either in his blog post or the promo page for the ebook packages.

The standalone ebook option is a little pricey at $25 for the PDF but if you consider the cost of legal advice on the topic, it is probably worth it.

Image credit: Light Reading by Martin, licensed CC BY 2.0


 

This article was originally published on Paul Jacobson’s blog on 2015-08-10

Which contracts photographers should consider using

Which contracts your clients should sign

A photographer asked a great question about contracts recently:

I would like to redo my contracts. Would like to know what do you get clients to sign before a shoot?

Disclaimer: This note is a fairly broad overview of many of the major themes you, as a photographer, should think about and which contracts photographers should sign with their clients. It isn’t legal advice or even the best advice for all photographers. It should give you a more informed starting point for a further discussion with your lawyer.

There are two key documents that you should have. The first is a contract governing your services and the other is some sort of privacy statement.

Services contract

The services contract needs to cover a number of themes both for clarity and to make sure you address your common risks. I also refer to services contract provisions as “terms and conditions” in this note.

For starters, use clear, well defined terminology is really important. It may seem pedantic but clearly defining key terms is essential for a clear and intelligible contract which, in turn, is more likely to be enforced if you ever have to test it. Obviously the content of the contract is very important but a contract written in confusing language can be very difficult to understand and enforce effectively. You typically include this terminology in a glossary in your contract.

Your services contract must obviously deal with your services, how you will communicate them and what you will charge for them. Think about issues like scope creep (where your services change without necessarily agreeing on the changes specifically) and amending your pricing as your scope changes. The model I prefer is to use a standard set of terms and conditions that refer to a separate booking form (that can be an online form or a paper form that your client signs) instead of preparing a lengthy contract that contains all the variables such as client details, services required and pricing. The booking form model that refers to the terms and conditions is less intimidating even though the terms and conditions, themselves, will be fairly detailed to make sure you deal with all the important themes.

One issue which comes up frequently in photographers’ groups is a cancellation fee. The Consumer Protection Act enables clients to terminate advance bookings subject to reasonable cancellation fees. Define those in your contract and set cancellation periods which may attract varying fees. For example, you may agree that if the client cancels a shoot 3 months before, the client will pay Rx; 1 month before, the client will pay Ry and 2 weeks before, the client will pay Rz. This will depend on your booking lead times; whether you can replace that booking and other similar factors. You will also need to align these cancellation fees with the Consumer Protection Act’s mechanisms and intent.

As a photographer the licensing aspects of your work are critical. The Copyright Act generally recognises your clients as the owners of the copyright in your photos if they commission you to do the work and agree on a fee for that work. This is good for your clients because they have more control over your deliverables but you have to consider what you will need to do with the photos. Because, by default, you are not the copyright owner in this context, you are not entitled to share the photos as part of your portfolio, restrict what your clients can do with the photos and exercise much other control over the photos’ use.

The Copyright Act gives you a way to change this default position. You can agree with your client to opt-out of the default copyright ownership mechanism in your contract. It is pretty straightforward but you need to include that in your contract. You may also want to think about including a mechanism in your contract which enables you to withhold your deliverables if your client fails to pay you, for example. This would be a separate clause in your contract.

Other clauses you’d include in your contract would be –

  • fees and payment;
  • privacy (linked to the privacy statement which I discuss below);
  • dispute resolution;
  • breach and the consequences of a breach;
  • termination;
  • common no-variation and similar clauses; and
  • domicilium clauses which can be pretty useful for different situations.

Booking form

A booking form is a convenient way to sign a client. Here are a few things to include:

  • Client details (name, contact details, address details);
  • Shoot details (date, times, locations);
  • Fees due (linked to specific deliverables), including deposits due;
  • Your specific deliverables;
  • Cancellation fees (you can include these in your terms and conditions but including these in your booking form makes them more prominent and confusion less likely);
  • Your details;
  • Express confirmation that your client agrees with your terms and conditions and privacy statement;
  • Signature and date fields (the form these will take if you use online forms can vary).

Privacy statement

As a photographer you are dealing with a lot of personal information. Using personal information often requires permission from the people the personal information relates to and the way you obtain this permission is a privacy statement (also known as a privacy policy or data protection policy).

As a starting point integrate your privacy statement with your services contract so when the client agrees to the services contract, s/he also agrees to the privacy statement.

Broadly speaking, the privacy statement must deal with these broad themes:

  • what personal information you will collect and from which sources (for example, automatically through your website, personal information your client volunteers through your booking form or contact forms and so on);
  • what you will do with that personal information (remember to include adding photos to your portfolio or Facebook page for marketing purposes, for example);
  • under what circumstances you may disclose personal information to third parties (these third parties may include your vendors for printing; law enforcement and other legal authorities); and
  • where you store personal information and, broadly, measures you take to secure the data (this will often mean identifying your hosting provider, especially if you use foreign hosting providers and will be transferring personal information across borders).

You will probably include other people in your photos (especially if you do functions and have the usual group photos) who have not signed your contracts. You should require your clients to obtain permission from people they want included in these group photos to be included and their agreement with your data practices which are explained in your privacy statement. How you do this can vary. You can prepare releases for subjects to sign and have them sign in advance or on the day or you can prepare something for your clients to have these participants sign. This can be a cumbersome process so consider the process with the least friction and which still results in permission from these subjects to take photos of them and use those photos for different purposes.

This is more important if you intend publishing photos on public platforms (for example, Facebook). Simply taking photos, making prints and handing these to your client probably won’t require you to go to these lengths because a subject who poses for a photograph clearly consents to being photographed. You’ll need to use your discretion.

It is very important to be sensitive about photos of children. You are not permitted to take photos of children and share them without their parents’ advance permission so make sure you obtain clear consents when it comes to children.

Get it in writing

If you capture the terms of your agreement with your clients in writing, you take huge strides towards reducing the likelihood of confusion and disputes. A written contract can be printed on paper. It can also be digital and part of an email or published on a website. Find the best medium for you that strikes a balance between clearly conveying your contract terms and being relatively accessible and convenient for your clients.

I have prepared a service contract and privacy statement for photographers which I’ve since updated. These two versions should give you a fairly decent idea of what your contracts could look like.

No, you can’t unilaterally opt out of Facebook’s terms and keep using it

Facebook has updated its terms of service and data use policy recently and the changes have upset many people. I’ve started seeing more declarations of users’ intention to opt-out of provisions of Facebook’s terms and conditions. These sorts of declarations seem to be legally binding with their fairly legalistic language but they don’t work except to help you feel better.

The only way to limit what Facebook can do with your content and your personal information is to stop using Facebook and to delete your profile. Unilateral declarations of your intention to opt-out of provisions you don’t agree with don’t make those provisions less binding on you.

If you use Facebook, you do so on Facebook’s terms. If you don’t want to be bound by those terms and conditions, stop using Facebook.

No photos of Cape Town Stadium, please, it’s protected

You may have heard that photographers are not permitted to take photos of Cape Town Stadium. The issue came up at the 2014 Advertising and Marketing Law Conference and I asked IP attorney, Hugh Melamdowitz, about the ban.

It turns out that copyright in the architectural drawings of the stadium were assigned to the City of Cape Town and the City’s ban on photos of the stadium are basically based on copyright protection. Commercial photos of the stadium will fall foul of the City’s rights. On the other hand, if you take photos that qualify for fair dealing protection under the Copyright Act (for example, for your personal use) then you should be able to sidestep the prohibition.

The reason for this (and similar) bans is probably to protect revenue the City earns from tourism involving the stadium. I don’t agree with the strategy, I believe that allowing people to take photos of the stadium (commercial or private) and sharing those photos widely will only encourage more tourism and more revenue from that tourism derived from ancillary products and services.

Another possible excuse for a photo that includes the stadium is if the stadium is incidental to the photo as a whole. Drawing a clear line between incidental inclusion of the stadium and taking an otherwise prohibited photo of the stadium will likely be pretty tricky.

Next time you are in Cape Town, bear this prohibition in mind if you intend taking photos you’d like to sell some day. Perhaps focus your attention on other aspects of the city and its environs, just to be on the safe side.

4 tips for developers selling software

Say you’re a software developer and your customer wants to buy your app, do you know what you should be thinking about when selling software? Here are a few contract tips:

Can you legally sell your app?

Unless you have developed the code for the app from scratch and haven’t used any previous code of your own or any third party code, your app is likely to be a composite of code you’ve written in the past for other projects and which may even form part of your general toolkit.

You may also be using code from other developers which could be licensed under a variety of licenses, including open source licenses like GPL and BSD.

When you sell something, you generally transfer all the rights in the thing to the purchaser. You have to have the rights to transfer in the first place and if you don’t own all the rights in that thing you are selling, you can’t really sell it to someone else. If you attempt to do that, you’ll find yourself with a contract you are legally unable to comply with and that is a problem.

Tip 1: Check the rights you can transfer in a sale first.

Know what you are selling

This sounds pretty obvious but it’s a more complicated question that you may have thought. From your perspective you’re selling your app but what is that app, really? Are you selling the finished product alone or does your customer want the source code too?

Many software purchasers want the source code because they are concerned that if they don’t have the source code, they could find themselves in a pickle if the app breaks and they can’t reach you to fix it. It is basically a business continuity concern and the more your customer relies on the app to operate its business, the more important have access to the source code will be.

The challenges with selling the source code include disclosing your secret coding sauce that makes your code so valuable. Those trade secrets could give your customer or even a competing developer who encounters the code later an additional competitive edge over you. Another challenge is that selling your source code outright could have an impact on other projects which leverage elements of that source code because you will have far fewer rights to use that code once it is sold. This means you have to consider the impact on your obligations towards existing customers too.

Tip 2: Carefully consider precisely what you are selling and what the implications are of selling it to your customer.

Clearly define what you are selling

This also sounds obvious but it isn’t. In your mind you are selling an app but how would a person outside the deal be able to identify what you are selling, objectively? Is the app totally self-contained and in a box that can be easily identified? Chances are it may be a bit more complicated than that.

The reason why you need to be able to clearly define what you are selling is twofold: your contract needs to be clear on this and your customer’s expectations of what it will receive from you must correspond with your understanding of what you are selling.

How you define your app may depend on the nature of the app but here are a couple ideas:

  • Include detailed and app-specific functional specifications;
  • Depending on the app, possibly use a hash derived from the app’s code as a sort of fingerprint to identify it;
  • When describing the software’s functionality, avoid generic descriptions that could apply just as easily to software you are not selling;
  • Consider versioning your software and referencing specific versions being sold, if appropriate.

Tip 3: Define or describe the software being sold very clearly to avoid any confusion later.

Consider alternatives to an outright sale

A sale may not be appropriate because of its implications. Often a license agreement meet your customer’s requirements and help you avoid the problematic consequences of a sale so don’t be afraid to suggest that instead.

Licenses can be customised to suit most requirements and can, for example, be exclusive to the customer. The benefit of that sort of license is that the customer has the comfort of knowing you won’t make that software available to someone else and you retain enough rights to meet your other obligations.

If you go ahead with a sale and your customer insists on source code too, consider placing the source code in escrow with a trusted escrow agent with specified conditions which would trigger the source code’s release. Those conditions may include your business closing, you and your team failing to respond to requests for support for a period of time or some other set of conditions that would address your customer’s concerns.

If you sell your source code along with your app and you require elements of the source code to meet existing obligations to other customers or based on other licenses you agreed to, you may want to make sure you either withhold certain rights for yourself or license what you need back from your customer as part of the deal.

Tip 4: A sale may not be the best deal type and even if it is, this isn’t a one size, fits all approach. Customise the deal to suit everyone’s requirements.

Law is code too

Just because your sale agreement is a legal construct doesn’t mean similar rules you apply to your code don’t apply. Work with your lawyer or legal advisor to develop a contract that works properly and doesn’t leave you with bad dependencies and worse consequences.

Look at your contract as an app in its own right. Does the code make sense and does it function effectively given all the constraints and requirements?

Update (2014-06-10): Something else to bear in mind is the new VAT on digital goods sales. Developers who make more than R50 000 will have to register with SARS to pay VAT. It’s a pretty low revenue threshold.

Take a look at this article on MyBroadBand titled “Get ready for VAT on e-books, apps, digital music” for more information about how this affects you.

The looming domain name war that brands should be preparing for

A lot of new generic Top Level Domains (“gTLDs”) are becoming available and their emergence is making life pretty interesting for brands which have to carefully take stock of which gTLDs could have an impact on their trademarks and which domains they should register to protect themselves. To complicate the situation even further, the roll-out is a phased roll-out and some of these new gTLDs include local South African gTLDs like .joburg, .capetown and .durban. Brands that don’t understand the registration process are going to lose out of potentially valuable domains, each of which could threaten their brands and trademarks,

You probably read or heard that ICANN (the body responsible for administering the domain name system that makes the Internet work) approved a number of generic Top Level Domains (usually referred to as “gTLDs”) in 2013. You are familiar with a number of gTLDs already: .com, .net, .org, .info and more. What changed last year is that a lot more gTLDs were approved. A couple randomly selected gTLDs include .blog, wine, .shop, .web, .photo (not to be confused with .photos), .sexy, .community, .cool, .agency, .social, .ceo and even .guru. The new gTLDs include gTLDs in other languages too including Chinese, Arabic, Cyrillic and even Hindi.

To say the Internet is becoming a pretty busy place for brands is an understatement because each of these new gTLDs represents a branding opportunity and because there are potentially a number of similar or related gTLDs, brands have to be pretty vigilant and proactive when it comes to registering their preferred domains at these new gTLDs. A hypothetical example is, say, Acme Hotels which has already registered acmehotels.com and possibly even acmehotels.net. One of the new gTLDs is .vacations so Acme Hotels may want to register acmehotels.vacations, perhaps even acmehotels.luxury or even acmehotels.holiday. What about a digital agency that delights its clients with its digital marketing services and may already have digitalagency.com and digitalagency.net. It should probably register digitalagency.social and even aim for digital.agency (although that could be a competitive one for sure).

To add to this, gTLDs have been and will become available in stages and, when they first become available, they will not be available for general registrations like most domains currently are. Brands will have an opportunity to apply for domains corresponding with their trademarks in a so-called “Sunrise” phase

Sunrise services allow trademark holders an advance opportunity to register domain names corresponding to their marks before names are generally available to the public.

New gTLD registries are required to offer a Sunrise period of at least 30 days.

Brands that don’t have competing claims for domains at these new gTLDs will have an opportunity to register their preferred domains, although possibly at a premium price. Those brands who do have competition will have to bid for the domains at an auction.

Preparing for this process is no small feat. For starters brands will have to review the gTLDs that are either available or which are becoming available and identify the domains they require. Ideally brands should also register their (registered) trademarks with ICANN’s Trademark Clearinghouse which is integrated with the domain name registration process for the new gTLDs and gives the companies operating the new gTLDs a mechanism to verify trademark claims. Here is a quick overview of what the Trademark Clearinghouse does and what the benefits are for brands:

Once the Sunrise phase is over, domains at the new gTLDs will probably become available for general registrations but all the valuable domains may well be gone by then and brands that missed out on the process will be left lodging claims for trademark infringement (and given the number of new gTLDs, there will probably be quite a lot more claims for arbitrators to work through).

If you thought it couldn’t be any more interesting (or scary, depending on your perspective), some of the new gTLDs which should start becoming available in the coming months include gTLDs with a local flavour:

  • .africa
  • .joburg
  • .capetown
  • .durban

If you are a South African business with regional offices, you may want to give some serious thought to the city gTLDs and pre-register your domains with your domain name reseller as soon as possible (disclosure: we are a domain name reseller with South Africa’s only active ICANN approved domain name registrar and we help our clients register domain names as part of their brand protection strategy).

The phased gTLD roll-out is probably going to help pre-empt a “big bang” but it is also going to keep brands concerned about their trademarks and branding pretty busy for an extended time period as they research which new gTLDs become available and when and then prepare for each registration process, defending their trademarks as they go.

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p>As I said earlier, saying the Internet is becoming a busy place is an understatement. For brands, it is about to become pretty interesting too.

Could it be unconstitutional to block access to the Pirate Bay?

A recent Dutch court handed down a fascinating ruling which sided with ISPs who were under pressure to block the infamous Pirate Bay. What is really interesting about the ruling is that the Court found that ineffective blockades infringed ISPs’ rights under the European Charter of Fundamental Rights:

In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers’ entrepreneurial freedoms.

The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes “freedom to conduct a business” and “right to property.” In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.

The South African Bill of Rights has similar rights including the Freedom of trade, occupation and profession which states that –

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

The Dutch argument may not work in the context of our Bill of Rights but it is certainly an interesting argument to make. What must surely be relevant in a hypothetical South African court decision is how effective attempts to block access to torrent sites are and whether more draconian efforts become unduly oppressive?

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p>(Source: TorrentFreak’s post titled “ISPs No Longer Have to Block The Pirate Bay, Dutch Court Rules“)