Do they own the files, or just the images?

October 12, 2005 11:25 AM

Graphics for hire ethics question: For some years I've been creating fairly complex instructional graphics for a small company as a freelance editor/designer, using Illustrator. Until recently, all I sent them was a print-out of the finished results that they then had reproduced. Recently they've slowed down on sending me work, started asking me questions about Illustrator, and requesting that I send them copies of some of the .ai files I've created over the years.

OK, so I guess they want to start doing this themselves. Problem: I lost a few of the completed .ai files a few years ago in a drive crash. They didn't care about the .ai files then since they had the print-outs, but now they want me to recreate them for free. It'd take at least a day to do each one. What would you do?

posted by dpcoffin to work & money (25 comments total)

PS: Obviously, what I'll do in this case depends on how much I want to keep working for them, given the reduced demand, etc, etc. I’m asking primarily about whether they own the files as well as the images and/or reproduction rights, and how I might clarify/specify this easily in any future similar situations.
posted by dpcoffin at 11:31 AM on October 12, 2005

I would not create them for free, especially if they're no longer sending you business. I would also check your contract to see who owns the finished images.

With my clients, if I have a fairly complex Photoshop or Illustrator file I only send them a jpg or gif of the image at a greatly reduced size for preview purposes. I ALWAYS keep the originals to myself.

I would also refrain from assisting them on learning anything that will take work away from you unless of course they're paying you for your teaching. If they want to learn Illustrator they can do it without your assistance.
posted by letterneversent at 11:32 AM on October 12, 2005

No written contract, that’s the problem; this was my first client of this sort, back when I was moonlighting. In those days it was like working with friends. Not so much now:(
posted by dpcoffin at 11:37 AM on October 12, 2005

I guess I’m also looking for some “friendly” logic to use when I try to explain why I’m not willing to do this for nothing, since I would like to stay on potential working terms with them... a good analogy to give them that’d help them see this from my pov.
posted by dpcoffin at 11:42 AM on October 12, 2005

A decent analogy is that a photographer is not, in general, required to keep your negatives around forever. Also, when I worked for a pro photographer, his clients were buying either PRINTS from him, or the rights to use a photograph in a particular way (say, a national print ad, or maybe a corporate report), and very rarely did he sell the image itself. He would keep negs for 3 years and at the end of that he would decide what to do with it. Sometimes this would mean asking the original buyer if they'd like to buy the negatives (and full use of the image) from him. If they said no he'd destroy them, or, if they were of some use to him, add them to his stock portfolio, or something like that.

I don't know much about graphic design but I doubt you "owe" them the original files you used to create the images, nor should you be required to recreate them for free.
posted by RustyBrooks at 11:50 AM on October 12, 2005

They're clearly asking for things they need to sever your business relationship. While this keeps the rapport going, it obviously creates much less work for you, and they'll be expecting even more freebies and dirt-cheap rates. You need to stand your ground on this one. The logic to use is that you don't have the files anymore and it will cost time & money to create them. Also, your time is valuable and, while you've helped them in the past with minor work, you expect to be compensated accordingly for any sort of training or consulting.
posted by rolypolyman at 11:51 AM on October 12, 2005

I'd put it in the terms of their industry. If they repair cars, for instance, say it's like replacing the rings, pistons, and cranks and boring the cylinders... you have to COMPLETELY re-do things, and it'll take you a long time to do each. If they're doing their graphics work in-house and you're not going to be receiving a lot of continued business from them, it's not necessarily worth your time to do it for free because you created the graphics and you hold the copyright on them. (AFAIK, even though it was work for hire, you still maintain the copyright because you were the creator and they didn't pay you extra for rights to it 'cept reproduction.)

OTOH, if they were willing to guarantee you a certain amount of work at a certain pay level over the next year, then you'd be more than happy to recreate the graphics and give them to them...
posted by SpecialK at 11:53 AM on October 12, 2005

(Give them an example of what's fair is what I'm saying. Don't sour anyone's grapes.)
posted by SpecialK at 11:54 AM on October 12, 2005

"If you'd like to pay for my time to teach you how to do these thing, I'd be happy to, otherwise I can suggest some good websites/books/classes you can take to learn more."

IANAL, but it sounds like without a contract dictating that they own the originals, you could just be truthful and say you lost the originals in a hard drive crash. It seems like you don't really owe them anything. See what they suggest to do from there.

Like it was said before, if you want to keep them happy then sure you can redo the work for them.
posted by starman at 11:55 AM on October 12, 2005

I can only speak for Canada, but most western countries are the same, roughly speaking. You own those files (unless it was a work for hire contract with clear stipulations). Whenever I buy art for use in advertising I am buying the rights to use the artwork, not the original files.

I do get illustrators and photographers to send me original files, but I send through very clear purchase orders outlining my rights and theirs, so they are covered if they see the work being used in an unlicensed manner.

If they are starting to learn their way around Illustrator, it won't be long before they figure out how to trace your work anyways, so lost originals aren't a huge deal if they have print outs.

I'd negotiate a buy-out cost with them, and just tell them about the lost originals. You don't owe them those files.
posted by Salmonberry at 12:11 PM on October 12, 2005

1. They are ending their business relationship with you, and you won't be able to "keep them happy" and get more work.

2. You should politely explain that you were paid for what you provided. If they'd like to buy your work on the electronic image, you'd be glad to discuss it.
posted by ewkpates at 12:13 PM on October 12, 2005

I don't think you have anything to lose by being direct. Tell them "look, it's clear you want all this stuff so you can stop contracting with me. What you're asking is contrary to my best interests, and I'm not going to do it. I don't have those files, I'm not going to give you the ones I do have, and I'm sure as hell not going to recreate lost ones gratis. I would like to continue doing business with you, and if you decide it's not worth doing this stuff in-house, or taking it to a different contractor, or whatever you're doing, I'll welcome the business, but I have to look out for myself."
posted by adamrice at 12:20 PM on October 12, 2005

I would just say you don't have it, because your computer crashed. Sorry.
posted by xammerboy at 12:42 PM on October 12, 2005

According to The Law, all creative work is owned by the creator unless either of these two conditions exist:

1. You're an employee of said company.

2. You specified in a written contract that the work commissioned was a work for hire.

That boldfaced term is your best friend. If you take an assignment in just about any creative profession and don't specifically sign a written contract assigning the copyright away to the business, it's yours. The only caveat is if the work uses any of their trademarks (logos for their company, for example), in which case the company gave you permission for limited use for the purposes of the design, but obviously didn't give their rights away. In that case, the original works are still yours, but you're more restricted in what you can do with the work in question (self-promotion is usually fair game, but that's about it.)

In your situation, I would echo the above sentiments about being honest and forthcoming. Tell them you don't have the original files any more, but if they'd like you can recreate them for a fair rate. When they originally contracted you, the product you provided (low-resolution images) was all they wanted (otherwise they would have asked for the vector files they're now inquiring about). Thus your original commitment to them is finished; additional work is additional work, and should be charged as such.
posted by Civil_Disobedient at 1:00 PM on October 12, 2005

Of course you want to keep a cordial relationship. So don't give anyone at that company any excuse to act like an asshole. people who are in the wrong often like to get huffy.

"I do teach Photoshop. Let me send you a list of my rates." Or, "Photoshop is complicated enough that I find it difficult to explain, but here is the contact info of someone you can hire to teach you."

If you really do want to give them an explanation, tell them you have a lot of work right now, but in light of your past relationship you would expedite their job, whether it be new designs or adapting an existing one. Otherwise, act as if you don't quite see the problem.

What would you tell a well-meaning but naive person who thought you could just dash the work off in a few minutes? tell it to them like that... Phtoshop is great software because it can make it LOOK easy. But there's actually a good deal of time involved. Better to act as if you believe they're underinformed, rather than opportunistic.
posted by wryly at 1:15 PM on October 12, 2005

IANAL so I can't advise on the the legal issues of ownership and so forth, but I will give you one piece of advice, something I wish more people in our misunderstood, underrated industry would learn to live by:

Never. Work. For. Free.

Ever.
posted by BorgLove at 1:28 PM on October 12, 2005

I would never hand over the originals unless they were part of the original bargaining.
It's just not done.
Much less recreate them from scratch.
posted by signal at 1:52 PM on October 12, 2005

All IMO:

A few years ago they were completely happy with what you delivered, and they paid you based on those deliverables. That transaction is now done with. Over. They can't turn around 3 years down the line and say "we want all this extra stuff we just thought of".

If they want to make a new transaction with you, then great - but the .ai files are worth more, so they should be paying more.

(This assumes that the relationship is coming to an end anyway).
posted by Leon at 1:58 PM on October 12, 2005

They aren't entitled to a free do-over unless it was specified early on that you'd be turning over your .ai files. Just tell them you don't have them anymore and offer to redo them for a fee because it'll take a full day of billable time to redraw each one. It is unreasonable of them to expect you'd keep your files archived for years and years anyway, though the firm I work for has files going back about nine or ten years.
posted by MegoSteve at 2:07 PM on October 12, 2005

I would just say you don't have it, because your computer crashed...

"...and recreating those old files would take time away from my other, paying work. I'm sure you understand. But if you want me to recreate the files, I'll be glad to, because we've had a great relationship so far and I'd enjoy continuing it. Let me know if that's what you want to do and we can talk about rates. You guys were one of my first clients, so I'll even cut you a break for old times' sake."
posted by mediareport at 3:16 PM on October 12, 2005

I hire designers all the time. The only time I've asked for original files was when I was planning to have someone do the work in-house and thus sever or minimize the designer's relationship. (It was nothing against the designer...more of a way to cut costs and save my own neck.)

Most designers charge archival fees for simply sending an old PDF or mock-up (anywhere from $35 and up, depending on how much of a pain it is to dig up!). If a client wants an original file, then the designer charges a flat fee (if willing), which may not even include transfer of all rights.

As for recreating files...just explain you lost the files in a hard drive crash. Don't recreate the files unless you're getting at least double what you charged for the work in the first place -- I'm assuming that recreating the files would include giving them the actual files.
posted by acoutu at 3:26 PM on October 12, 2005

Hmmm...NOT many sides to this issue, I guess!

Many thanks, folks.
posted by dpcoffin at 7:22 PM on October 12, 2005

You were hired to produce illustrations, not working files, nor backup stuff--And what everyone else said. (When we commission illustrations, we only demand a rough beforehand to go over with them midway thru, for alterations and stuff if needed)

I could only see this being a real issue (that they're not screwing you, in other words) if you did collage-type things, and there were problems ascertaining the rights to the source material you used--that's come up for some illustrators, but your work doesn't sound like that type of thing at all.
posted by amberglow at 8:47 PM on October 12, 2005

I'll repeat it. don't work for free. Doesn't matter that it's your first client.

"Sorry, I don't think I can provide them." And say nothing more.

"Oh, you'd like me to work for free? Yeah, I'm willing to sell them for you, but you paid me for what I provided you, not for you to add items to finished work. I don't care if you have a new person you've hired to just make small changes. I've appreciated your business, but I think you're overstepping your bounds by asking for anything more than we agreed upon, and then worse you asked for me to work for free? For Free. Please, tell me about the work you do for free, cause I'd like some."

I'd be freaking indignant. But politely.
posted by filmgeek at 9:25 PM on October 12, 2005

Metafilter: Freaking indignant. But politely.
posted by poweredbybeard at 10:06 AM on October 13, 2005