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Subject:Legal framework for consultancy work? From:Geoff Hart <ghart -at- videotron -dot- ca> To:TECHWR-L <techwr-l -at- lists -dot- techwr-l -dot- com>, The Documentation Doctor <documentationdoctor -at- googlemail -dot- com> Date:Sat, 03 Dec 2005 10:23:18 -0500
The Documentation Doctor wondered: <<I'm reappearing under a new online
identity after a couple of years of absence, having decided to
reinvigorate my career by building on my out-of-hours technical
authoring consultancy work.>>
Congratulations. I've generally enjoyed working as a wage slave, but
enjoy the freelance life so much I can't imagine going back to work as
an employee. The freedom to fire unpleasant or unrewarding clients
(which I've done a couple times now) is priceless.
One generall overall comment about your questions: Since you're asking
about legal implications, you really need to invest a few bucks,
pounds, RMB, or whatever in a lawyer's advice. Legalities vary, often
dramatically, among jurisdictions, and you need specific advice for the
jurisdiction you're working in. When it comes time to sign contracts,
one standard clause for any contract is a statement about whose
jurisdiction the contract is governed by; this is particularly
important if you're working across national borders.
That being said, most jurisdictions seem to follow the legal principle
that if everyone understands the terms of the contract and agrees to
those terms, then everyone is bound by those terms:
<<1. Templates and copyright: If I create a Word template for a client,
I would expect them to own the design elements, but what about the
Styles and any macros? How do other people get around, e.g. having to
use a different kind bullet each time?>>
First off, you must always clearly distinguish between doing a "work
for hire"--in which case, the client owns the work outright and you
cannot reuse it without their permission--versus simply providing them
with a template that you reserve the right to reuse. Graphic designers
face exactly this problem, and if you can find someone who does graphic
design in your area, they can provide clear advice on how they handle
this issue. But the key thing is to be clear about this in your
contract or statement of work.
Next, you need to distinguish between standard design elements and
_custom_ elements. You could make a very good case that anything that
comes as a standard design element in Word, such as the default round
black bullet, cannot be copyrighted or trademarked because it's out in
the public domain--or a bit more legalistically, it's provided
royalty-free to everyone who uses Word by the grace of Microsoft.
You can't really copyright or trademark the _elements_ of a design
unless those elements are themselves original (e.g., a logo or
trademark phrase). All you can do is copyright a design that is clearly
different from other designs. Think of it this way: I can't copyright
any of the words in a dictionary, but I can--and do--copyright how I
assemble those words. Analogously, you can't copyright round black
bullets, but you can copyright a design that specifies an exact and
unusual position from the margin combined with exact typographic
treatment (e.g., font size, leading, kerning).
In any event, why would you want different bullets for every client?
Unless the form is more important than the function (i.e., much graphic
design), a bullet should be like any other punctuation: entirely
unobtrusive, and only visible enough to serve its purpose.
<<2. Liability: Am I right in saying that, in paying me for the final
document, they are accepting that it's fit for purpose? Is it usual to
state this explicitly somewhere.>>
I state this explicitly in my contract or correspondence, and recommend
that you do so as well. You also need to explicitly state how you will
deal with the review and approval process. For example, my standard
editing contract is basically as follows: "You are paying me for one
edit plus all discussion necessary to achieve consensus on the details
of that edit. You're the expert, so you take responsibility for
assessing whether what I did was right, and if not, we discuss it until
I provide you with a satisfactory solution. But once we're done
talking, you confirm that you are satisfied with the final quality of
the work by paying me. After that, any additional work is by the hour."
<<3. Contracts: Currently, I do the odd small job and submit the final
result along with an invoice, without ever signing a contract. Is this
a common way of doing things, or do I need to get a standard contract
drawn up?>>
For large and expensive jobs, you need a formal contract. But even for
the smallest possible amount of billable work, you need at a minimum a
written (including e-mail) agreement about what you are being hired to
do, what you will be paid (and when), and so on. I have a small PDF
that I send to all my prospective clients, containing my standard
terms. I e-mail this to them before I begin work accompanied by a
simple statement: "Here are my standard terms. If these are acceptable
to you, I will begin work on [date] according to these terms. If not,
let's haggle over terms more suitable to you."
This works fine because most of my work is only a few hours long (lots
and lots of small manuscripts). Once I've established a working
relationship with a client, I don't keep sending them the agreement
each time, but I will send a "reminder" annually to regular clients to
protect myself. For larger projects, such as books and compilations, I
won't work without a formal legally binding contract, and I specify a
series of intermediate payments rather than leaving it all to the end.
That's the only way to ensure a client doesn't go out of business
without paying you.
If you're doing writing, it's worthwhile making explicit something that
is generally left implicit, sometimes at the expense of the writer:
that the copyright to anything you write remains fully in your name
until you've been paid in full, and that use of your work without
payment thus constitutes a copyright violation. You can legally force
someone to withdraw a product containing your writing from the
market--at great expense if they've already printed and mailed it--if
they refuse to pay you but still use your work. If you take the
additional step of formally registering the copyright, you are then
entitled to statutory damages (e.g., US$20k for one colleague) without
having to prove any financial or other damage to you. This really makes
recalcitrant clients sit up and take notice. <g>
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