Re: FLASH: who owns the fla?--You're kidding, right?

[Frederico]

>At 12:23 PM 11/23/99 , you wrote:

>>If one creates a Flash movie for a client do you give up the rights to

>>the .fla file as well as the .swf when they pay you?  I have wondered

>>about this from time to time, but now the question has come up with

>>one of my sites.  If you give them the fla files you would lose

>>control over what they did with it.  What do y'all think or do about

>>this?

>>

>>Karin Christensen



Boy, I sure hope none of you just give up the FLAs along with each job. 

For that matter, the SWFs, either. To do otherwise sets a bad trend for 

the rest of us.


 Industry standard in most print and digital fields, as well as 

software/actionware is that the design firm owns copyright to not only 

the visual imagery, but the base code that allowed its creation, unless 

otherwise specified in the contract--you are all signing contracts in 

*advance*, aren't you?


You should *NOT* even generally *SELL* the *SWF* to a client. You merely 

license your copyright to the work-product for a specified period 

(usually in perpetutity). This is also applicable to JavaScripts, ASPs, 

or any other base-code of your creation that generates a function or 

result for which the client has contracted you to create specific to 

their needs.


My gosh, don't you see the implications of just giving up that code? If 

you create an F4 active site, and have it hook up into a database, hell, 

even just create a chat engine, and then pass the FLAs and 

base-HTML/JS/ASP host-code off to the client, technically, you can 

*NEVER* recreate or sell those functions again, as now the *CLIENT OWNS*  

them. Indeed, now you must go to the once-client to license back those 

tools so you can work again; and the client himself can just put a new 

face on your work and resell it as he pleases.


Take RapFoto.com as a fine example of a valuable commodity: A simple, yet 

clean, reuseable, expandable gallery engine. However, if Rosetti gave the 

FLAs to Anderson, Anderson could just plug in any new BMPs he wanted, and 

continue to resell the engine to as many photographers as he wanted. What 

would Al get for all his design efforts? A one-time payout, and he can't 

ever (legally) use the same concepts or techniques again.


The only items/elements you cannot claim as your own are any stock work 

provided by the client, or derivitives thereof (i.e., client logos, 

service marks, trademarks, etc); however, you may claim full copyright to 

any concepts created with their logos as a result, as well as the Right 

to Display any such work, regardless of the client-ownership of the core 

content (unless you specifically state otherwise). This area is crucial 

to your portfolio (though once established, you can more easily go full 

NDA, and live without the bragging rights).


Before you even pitch a concept to a client, they should be signing a 

contract that specifically states *they cannot use* any visual concept 

(or anything even remotely resembling it) seen by them, created by you, 

unless they pay you for it, or can prove beyond doubt they were presented 

a similar concept by another firm prior to you. How many of you have 

pitched a job, and a few months later seen almost the same damn thing, 

only done by that firm that underbid you? Well, if you signed an NCA/NDA, 

and documented the copyrights of the concepts you showed them properly, 

you can sue their ass for breach and theft of property.


Just go to any bigtime/midtime/smalltime print-ad firm for your own ad 

campaign, and you won't see mock-up sketch number one until you sign a 

Noncompete/Nondisclosure Committal Agreement.


Now, that contract is before you sign the real contract, which discusses 

in detail, down to naming proposed file extension names, as to exactly 

what parts of the work the client brings to the table (usually logos, 

sometimes content in the way of catch-phrases, slogans, service marks) 

what derivitive work you will *license* to the client (the SWF, the 

JavaScript, etc), and what source work and *unused* concepts you will 

retain ownership thereof (FLA, PSD, etc).


Then, you do the work, and before the client actually takes delivery 

(ownership and/or licensing of your work), he signs a Bill of Lading, 

which is basically an inventory of all the end files that he either owns 

or has licensed the use of, and it also has a reminder-clause in it that 

says once more that you own all the FLA, PSD, JS, ASP, JAR, CLASS, etc, 

etc, unless otherwise listed on said BOL.


Please, if you're just giving up your source work as part of the ticket, 

you not only hurt yourself, but you hurt the rest of us by setting trends 

that challenge our rights to ownership of our creative work.


Please check out the resources at http://www.gag.org/


Hope this helps.


Kind Regards


Frederico




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