I have a client company whose management has changed or retired. The new director has their own favorite vendors and my business with them is down 50% last year, and is less this year to date. This company has been 80% of my workload for some 24 years, and I have cataloged and maintained my working files for them for this amount of time. Many projects are updated files from previous projects, so the files have value.
Now that I am being phased out, what, if anything, can I do with these files? There is value to this company to have these files.
Can I offer these files for a price? And for how much? Are there legal issues which would prevent me from doing this? Most importantly, is there something unethical for considering this path?
Unless your contract (if there is one) specifically excludes source files, Iâd assume they belong to the client. Thatâs certainly my own approach - they belong to me until the invoice is paid, then theyâre the clients property (excluding licensed images or fonts, unless billed for separately).
In 99% of cases, Iâm never asked for the source files and donât send them unless asked (mostly because it adds confusion for a lot of clients). But if / when I am asked, I feel obliged to send.
Given the length of time and presumably large number of files, you may be able to bill something for your efforts in cataloging and transferring them. But I wouldnât consider it reasonable to bill for the files.
Also worth considering that if their preferred vendor doesnât work out, for whatever reason, they may come back to you. Go the extra mile and come across as âdecentâ from the outset and youâll win some brownie points.
Unless the contract specifically mentions turning over the source files, they typically belong to the designer. As a courtesy, I typically give source files to good clients if they ask for them, but itâs not automatic and I make sure to explain to them that Iâm going above and beyond by giving them the files that they likely wonât be able to use anyway since I canât legally give them the fonts or, in many cases, the photos.
Iâm always very specific about deliverables. For the sake of simplicity, letâs say I was designing a trifold brochure and the deliverables were 5,000 copies. In other words, the contract would stipulate exactly that â deliverables amounted to and are limited to 5,000 printed copies of the brochure.
In addition, in the U.S., with contract work, the copyright typically belongs to the designer (at least the part the designer was responsible for creating) unless itâs specifically transferred to the client. I always state in my contract that the copyright transfers upon payment in full, but lacking that bit of verbiage, I would, according to the law, basically be just selling them usage rights to the work.
So really, it all boils down to the contract. If you have no contract with them or the contract doesnât mention source files, if it were me, and if it appeared likely this client was finished using my services, I might very well propose selling the source files to them â I certainly wouldnât voluntarily offer them up for free.
I guess, to an extent, it depends what the work is and what you were hired to do too.
Letâs say youâre hired to design a logo - thereâs no way it would be reasonable to hold on to the copyright to that design once the client has paid for it, nor the source files.
Personally, if Iâm being paid to create something, what I create belongs to the client if they pay for it.
It would be akin to a painter being hired to paint a portrait and then handing them a print of the artwork instead of the original.
You and I agree on the examples you mentioned. The deliverables on a painting, of course, would be the painting itself, not a reproduction. An illustration, however, might very well be another matter where the client only needed limited reproduction rights, for example, a magazine story.
Any client who allowed the designer to retain the copyright on a logo is, well, a bit foolish. And any designer not signing over the copyright on a logo to a foolish client would be, in my opinion, behaving unethically.
With the logo, though, like I mentioned, I would put a clause in the contract stating that the copyright transferred upon payment in full and that the deliverables would be the logo in various specified formats. What wouldnât transfer would be any of the miscellaneous sketches, rejected ideas, preliminary or working versions, and experiments. I would charge extra for them.
Oh, absolutely - I agree that only the end result is transferred to the client. Everything leading up to that is retained, because itâs the deliverable that the client pays for.
In terms of your illustration example though, thatâs one instance where Iâd expect a contract to be specific about what is and isnât offered, rather than it being implied. However, Iâd also expect the rate billed to reflect that.
I guess I should also consider just how much is being charged here. It may be that the source files arenât sent because subsequent projects are simply modifications of it (and thus billed at a lower rate initially - something Iâve done with catalogues before). Or, it may be that the client wants to âexperimentâ with a concept and only commissions a raster image for mockups. Again, in both scenarios the exclusions would be specified rather than implied though, certainly in my case.
Not sure the type of agreement you made with them previously, so this may or may not be relevant.
Several years back I developed packaging for a small company, and proceeded to manage all of their art files, edits, new products, etc. At the time they had no need for original source files as I was their primary designer and they were also trying to keep their costs low, so I was only providing them print-ready files with unlimited reproduction rights.
Years later as they grew larger, new staff, and got their own design department, they had a need for full rights, source files (and probably not so much me). However my hourly rate with them was not my, almost double priced, work-for-hire rate. Also another challenge, since all source artwork was never sent out to them the files were never primed for distribution; Files are a mess, little organization, hidden layers everywhere⊠Some level of cleanup would need to occur. No designer wants to open up a jumbled mess of artwork and try to make heads or tails of it.
I provided them two options to obtain these files / rights:
Back pay me for all of the work previously done, pro-rated at my work-for-hire rate. I would charge them a sum for file cleanup on top of that. (For them: turn key solution, but pricy. For me: Big $$$ payoff cause it was several years worth of work)
new extended contract with me at my work-for-hire rate, all design work would become theirs as I worked on it. We can tackle the âpriming for distributing / handoffâ on an as-needed-basis and I would be there to help carry them through this transition as needed. (For them: what they want as they need it, with extra assurance and design assistance. For me: an extended contract at an even higher rate)
Both options are a win-win for me, but for them option 2 is the greater value proposition; and thatâs the option they chose.
My concern is that they interpret your offer to surrender your work files as a desire by you to sever your relationship with them. Or that you are going out of business. Neither is productive. Hang on to the files and check in with the client now and then to ask if theyâd like to update any of the pieces. Try to keep your foot in the door as long as possible. Clients do bounce back sometimes.
Yes you can offer them for a price, but I think most clients have the default expectation that they own âall rightsâ to everything you design for them. Thatâs why itâs important to have quotes and contracts that identify your deliverables. I donât do that many logos, but when I do, all rights transfer. For everything else I do, I specify the deliverable is a PDF, sent via internet, and that I am granting the client limited reproduction rights, or I am brokering the printing, and the printed products are an additional deliverable.
You might want to get a copy of the Graphic Artists Guild Handbook of Pricing and Ethical Guidelines. It will walk you through the licensing issues.
The biggest hurdles would be in materials that were licensed. No one buys fonts or stock. You pay for licenses to use them. Even the so called free stuff comes with licensing restrictions. You invite financial liabilities upon your client and yourself if you give them fonts and stock that werenât properly licensed in their name. You can still give them the files you designed, but an indesign file is going to look weird without the fonts and stock. The client will probably ask why you are charging them for a file with so many error messages.