Ah, social justice, where are you now?

January 13, 2009 6:50 PM

I am a graphic designer in Quebec and I have a long term client (8 years!) who abruptly fired me last week. They are a government-grant and foundation-funded non profit working in the (*snort*) social justice sector.

We had a contract that does not end until August 2009 which includes a list of expected projects and estimated fees. It also has a clause that very clearly states that 30 days written notice must be given for either party to severe the contract. This is not what happened.

What happened was this: I was working under a ridiculous deadline over the holidays to get them the first drafts of three separate booklets at the end of the holidays. I managed to get that done and was then told that I would be receiving a new set of design guidelines to apply to the booklets. Arrgh. This made me very irritated and I got sort of short and snarky with the underling who was calling to inform me of this. (I realized once I got off the phone that it wasn't her fault at all and promptly sent her an apology.) I wasn't mean or threatening, just incredibly annoyed to be receiving this info after having worked over my holiday. Anyway, at the end of the day, I received a phone call from the head of the organization informing me that my services were no longer required.

Now they want all my native, editable design files from the last 8 years, as well as the editable files I was working on. With those files, they can continue to produce work without a designer, taking advantage of my templates, my experience, my "trade secrets". As I though I understood it, those working files were my intellectual property, but a re-reading of my contract states that they are all work-for-hire. However, this is not a traditional work-for-hire situation. I am using my own programs, fonts, computer, etc. and the work itself doesn't all fit under the "9 types" of work-for-hire.

I would be willing to let them have the native files for a fee (half of what it cost to produce each one?) If someone breaks a contract, though, do I still have to live up to my (perhaps) obligations? I am loathe to just give them up. It seems to me that I could also have just lost the files, you know?

For all you lawyers out there, here are the relevant clauses from my contract:

2. Fees & Billing. In consideration of the Services to be provided by Designer, and subject to the termination rights in this Agreement, Company agrees to pay ---- for services...Work for hire pursuant to clause 6 of this Agreement shall remain the intellectual property of --- up until such time as all invoices are paid in full.

5. Termination. Either party may end this Agreement by a written notice given by hand, by registered or certified mail, or by other commercially reasonable means, not less than thirty (30) days prior to the date of termination, for any reason or for no reason.

6. Work for Hire. To the fullest extent allowed by applicable law, and subject to clause 2 of this Agreement, all information or materials or results Designer prepares or works on for the Corporation pursuant to this Agreement (if any) shall be deemed works made for hire, and owned exclusively by Corporation, free and clear from all claims of any nature relating to contributions and other efforts of ---, Designer and/or any agents or assistants to Designer. --- will hold the Corporation harmless against infringement with respect to any materials prepared.

posted by anonymous to law & government (21 comments total)

GET A LAWYER.

I can't remember the last time an ask.mefi was so screamingly, blatantly in need of actual legal advice - not just because we're just random internet strangers, but because you NEED A LAWYER for exactly this kind of situation.

So in conclusion go and get a lawyer. None of us can say anything meaningful beyond that.
posted by Tomorrowful at 6:59 PM on January 13 [2 favorites]

As a designer, my view is that surely the work you've given them is the "information or materials or results Designer prepares or works on for the Corporation", and any templates and such (InDesign source stuff, PSD layers, whatever) are your own tools and techniques for producing those materials but NOT the materials themselves? Definitely you need to see a lawyer, but I wouldn't lost hope that they can help you. There's no explicit mention in there of working files being something you prepared for the Corporation, unless at some point they commissioned you specifically to produce templates for them and handed them over already; otherwise, you prepared templates for *yourself*, in order to help you efficiently produce the stuff that you gave to the Corporation already. That's what *I'd* certainly be arguing.
posted by springbound at 7:09 PM on January 13

Tomorrowful's right. You need a lawyer of your very own. From the sounds of it, there's potentially a lot of money involved in this. Unless the value of the work is significantly lower than the cost of a lawyer's time (which is entirely possible), you need one.

This is one of those situations where it's not the stated logic of the contract that will yield the proper course of action, but rather where you need to get a lawyer to convince the enforcing authorities that legal interpretation of the written words corresponds to something in your interest. You need somebody to litigate for you.
posted by Netzapper at 7:15 PM on January 13

Go back to them, point out that they didn't give you the thirty days' notice promised in your contract, and see if they are willing to work something better out. If they push back, you need to get a lawyer.
posted by juliplease at 7:18 PM on January 13

Better get a lawyer, son.
posted by turgid dahlia at 7:19 PM on January 13

IANAL, but two bits:

They already paid you for your deliverables. A court may decide that if they wanted those things they would have asked for them at the time. What if you had been run over by a bus, would they have gone to probate for them? Now, you did sign the contract, but clause 6 seems a bit boilerplate to me and thus may have plenty of wiggle room.

Also: The fee you would charge for the materials should not be half of what it cost them for you to make them, it should be half (or some other, hopefully larger) of the expected benefit they would enjoy from not having to recreate them. That is, the amount you would sell the work product should not be based on what you already did, but on what good it will do them over the life of the work.
posted by rhizome at 7:21 PM on January 13 [1 favorite]

I agree with GET A LAWYER. At least a couple hours of consult.

Also with puddpunk. I'd be interested to know how it pans out.

What little I know of similar issues (and as an architect I do know just a little) would be irrelevant in any case, as I'm sure there are nuances of Canadian and Quebec law that differ from that of any state in the U.S.

So, GET A LAWYER.

At the least you may be able to make claim to payment for another 30 days of work before you need to release the stuff to them, and use the time to line up another client.

If you GET A LAWYER.
posted by meinvt at 8:12 PM on January 13

It would be a shame if you had already destroyed all data related to that client. To avoid, you know, infringing on their IP.

That's just what the passive-agressive side of me would think up. An attorney may tell you that would be more unfortunate for you than for them.
posted by ctmf at 8:29 PM on January 13

I'm not a lawyer but I have worked for hire in the animation industry many years and MY understanding of clause 6 is only that it protects the company from you suing them for using your work in some sort of different context in the future.

The finished work you've submitted is the work they've asked for and the work they've paid you for. Have they ever cut you a check for the materials still on your computer at home? Where would it stop? Every preparatory sketch you've ever done for it? Every file relating to it? Every life-study you did to train yourself to be a better artist to produce better quality work for your client? It's not like you're an employee on a worksite and leaving the building with these materials.

Somebody made a rash decision and is trying to salvage their schedule by pressuring you to turn over material that they think might get them out of the awkward little production glitch they've just created. I'll bet there's some weird nepotistic relationship between the production assistant you griped at and the person who's fired you or the person above the person who's fired you. I would guess also that the time-window where these materials will be useful to them is going to be pretty short. If it drags on too long they'll have to chose between paying you a handsome sum to get them now or just biting the bullet and contracting somebody new. I think the smart thing for them to do is just pay you a decent severance and buy your templates before they get accidentally deleted or the hard-drive fails.

Don't have any further email communication with them. Talk informally with them (on the phone or in person rather than email) about the 30 days notice and if they don't want to play ball regarding the templates, ask them to clarify their position in a letter. Don't divulge too much and don't promise anything. If that doesn't work, tell them you're going to a lawyer. Ultimately though, remember that lots of lawyers want your money more than they want justice. Being a contractor puts you in an entirely different boat than a wrongfully dismissed employee.
posted by bonobothegreat at 8:38 PM on January 13 [1 favorite]

A different perspective: Coming from the world of software rather than print, we have always asked for, and received with out any trouble, all the "original files" (PSD, Illustrator, etc.) from the designers we've worked with. This has been the case whether their contracts were renewed or not, and whether they were working on site with our equipment / software, or working off site with their own. In fact, I wouldn't work with a designer that did it any other way. To me it would be like a programmer for hire that gave us an executable but balked when asked for the source code.
posted by steveminutillo at 8:49 PM on January 13 [1 favorite]

What do you want/what are you concerned about? More money? An apology? Your job back? To punish them for mistreating you? To avoid being taken to court by them? To take them to court?

If you can sort that out, we might be able to be more helpful. The approach you take will be different depending on the angle.
posted by ikkyu2 at 10:00 PM on January 13

IANAL, but my view is that you were paid to deliver the pdf / ps / whatever files, which we can assume you have been doing for the past 8 years. If your templates were not considered deliverables before the contract was broken, they shouldn't be deliverables now that its been broken.

Lawyer Up.
posted by jjb at 10:12 PM on January 13

I'm not Canadian, nor a lawyer, but I'm fairly certain that they cannot compel you to give them the tools that you personally bought or developed to do your job. For one thing, doing so will likely place you in violation of the terms of your font purchase agreements. If they want those fonts, they must buy them under their own company's name with their own money. You are not allowed to re-sell fonts that you personally have not created.

The templates are another matter and would depend on whether they were specifically included in the quote for the job or not.

I agree with bonobothegreat, but whatever the outcome, you need to get yourself a lawyer who specializes in protecting the rights of artists like yourself; that way, in the future, you can have a contract drawn up that suits your terms, not the company who hires you.
posted by LuckySeven~ at 10:19 PM on January 13

Yeah, you need a lawyer if you want to pursue this, but as stevem and ikkyu address above, holding back the PSDs and source files even once you've been paid sounds a bit dickish to me, and could end up costing you future jobs and references. You acknowledge that it was work for hire, and you can't (legally) reuse the templates and such anyway, so don't cling to them out of spite or try to extort more money than was ever mentioned in your contract or work until now. That will end badly, at least in a karmic sense.

I realize Quebec law is weird, but it's still very likely that the terms of your contract are 'severable' so that yes, it all still applies even if some part is broken or overturned.

But again: if you've been paid for your work, you're now arguing over what, 30 days pay for the notice you did not get? Consider the cost of your effort and stress when deciding how hard you want to pursue this. You don't get your time back.
posted by rokusan at 6:59 AM on January 14

(The gist of Bonobo's advise re shut the hell up is also very wise.)
posted by rokusan at 7:00 AM on January 14

I'd just like to say that I don't think the analogy between software designer and graphic designer is at all apt. The finished piece of artwork is all they need to produce their pamphlets. If they haven't been asking for the templates for 8 years then there's no reason to demand them now.

If you've developed a template that speeds up your process of laying out booklets, it's your property so long as in the future, you don't use visuals or text owned by the company. I'd say their ownership of any related intellectual materials is limited.."To the fullest extent allowed by applicable law" .. acknowledges the fact that they can't come into your house with a sheriff to demand the contents of your hard drive. (in my interpretation, anyway)

If their excuse for the firing was that, after 8 years, somebody complained that you are too uncooperative or dangerous to work with, then I don't see why you would hand over the materials just to protect your reputation. They won't be giving you any references. Did they really do it with NO discussion? It sounds very strange.

I would say also that a lawyer could be a huge waste of money because you're not suing for wrongful dismissal, you're just trying to get 30 days pay. Lawyering up would make more sense if you had some long term stake in the project but the main reason for this contract is to limit very narrowly any avenue that you may have to sue them.

Tell them you'll hand over the additional materials they are asking for at ".. such time as all invoices are paid in full." (meaning the severence you feel you are owed)

.. then just give them whatever you feel comfortable handing over.
posted by bonobothegreat at 7:41 AM on January 14

..that should read, "isn't at all apt"
posted by bonobothegreat at 7:42 AM on January 14

..jeesus, I need grammar lessons.
posted by bonobothegreat at 7:42 AM on January 14

They are a government-grant and foundation-funded non profit working in the (*snort*) social justice sector.

I'm guessing the difficulties that led to dismissal are related to that snort, and assuming there are some personality conflicts in play.
posted by rokusan at 9:35 PM on January 14

I had something similar happen when working as a contractor under at-will employment. Here's what I can advise:

1. get a lawyer, but be friendly about it with them because you may find yourself back in a business relationship soon and you don't want to burn the bridge.

2. from this point forward, every bit of communication you have needs to be in writing. if they call you, document it and mail it back to them as confirmation. (e.g., "I'm writing to confirm ___")

3. don't send anything, and don't confirm that you have it. no PSDs, no files sent, nothing. they should have scheduled this as part of the deliverables over the past 8 years. unless your services have been "ongoing archival of source material", you are not expected to have archived this and therefore it's a bold assumption on their part that you have in fact done that.

4. don't communicate any more than what is necessary. this relates to #3 as well.

I know getting a lawyer sounds like a pain, but once you make the leap you'll develop a good relationship with a lawyer and probably end up employing his services for more things in the future as your business grows.

So that's what I advise. Here's what happened to me in the similar situation:

Contract terminated because of things beyond my control. Manager blames Director, plays nice to me (good cop, bad cop). Suggests that finishing up my unfinished project would increase the chance of contract renewal in good faith. Emails, including invoice for time spent doing this "good faith" work went unanswered after I delivered the project. Live and learn...
posted by Señor Pantalones at 12:26 AM on January 15

"the (*snort*) social justice sector."

That, right there, leads me to believe there's alot more to this story that we're not hearing. People in the social justice field can be fanatical, often they're taking a significant pay cut to do work they truly believe in instead of making big dollars in the private sector. This can give them a bit of a complex and I could definitely see a non-profit cutting you loose if they felt you didn't respect the work they were doing.
posted by mizike at 9:56 AM on January 21