What is standard practice for copyright in web design?
July 8, 2013 10:59 AM   Subscribe

Negotiating a contract with a web designer. I'd like them to send us the website files on completion which include the layered photoshop file that was cut into html/css. They wrote back they can send all files except photoshop due to "Copyright issues". Is this standard industry practice or bs?

We want the photoshop so we have ease to modify or template in the future, should we switch to a cms that we manage in house, or another designer if things don't work. I was frank about this. Contract gives us the website copyright already. Any advice appreciated!
posted by htid to Computers & Internet (22 answers total) 7 users marked this as a favorite
Normally all the work they perform on your behalf should be your intellectual property once you have paid them in full for their work. So you should clarify with them what they mean about "copyright issues".
posted by Dansaman at 11:01 AM on July 8, 2013 [3 favorites]

Response by poster: Thanks. One thought I had was that it might include stock photos or fonts that are restricted. I'd love to know if that's ever an issue before I go back and negotiate this.
posted by htid at 11:08 AM on July 8, 2013

Best answer: Wait - it's only work for hire if that's specified in your contract (if this is in the US). Usually you'd pay more for this.
posted by amtho at 11:10 AM on July 8, 2013 [4 favorites]

Stock photos and fonts are things you should be able to pay for the right to use if needed and there might be some attribution requirements, but it wouldn't seem that your designers themselves would hold those copyrights.
posted by Dansaman at 11:11 AM on July 8, 2013

It feels like something is missing somewhere. When you say "all files except photoshop" is that a direct quote? Because the way it's stated is that they're saying they cannot send the program "Photoshop" because it's copyrighted, which is true, unless you, for some reason, paid for their version. So if that is a direct quote then it looks like a misunderstanding.

If instead they really mean the file they produced in photoshop then there are other interpretations. One is that they licensed the image themselves from someone else and are not allowed to send you a copy. If that's the case then those are issues you'll want to deal with as it indicates there could be future copyright problems.

The other possibility that occurs to me is that they want to keep an image they created for you. In this case it all comes down to the nature of the contract, is everything work-for-hire or is this something more complicated about "ongoing services" and such?
posted by bfootdav at 11:11 AM on July 8, 2013

FWIW, in non-web design, the client receives the final art, intended for reproduction. So, say for a logo design, the client would probably get a vector .eps file and maybe a set of jpegs/pngs/tiffs at various resolutions. They would not get any work files that were created prior to the final art being created. Your web designer is probably considering those base Photoshop files as work files, and you are only entitled to whatever images were generated from those for the actual web pages.
posted by Thorzdad at 11:12 AM on July 8, 2013 [6 favorites]

Also, there may not be a layered Photoshop file that they "cut into HTML/CSS". That is only one way to build a web page. I'd say most pages aren't constructed that way any more.
posted by Benny Andajetz at 11:21 AM on July 8, 2013 [2 favorites]

When doing work, my clients (typically non-profits) always own the work I do for them. They own all of the source files (Photoshop or anything else). I typically have them sign my agreement that works as a limited NDA and lets me use images of their site of my design in an offline portfolio. I do have variants if they want to list me as a webmaster or designer, or if they do not want a NDA, etc. They still own all of the files though...

Note: I generate all graphics myself, do any site branding photography myself, and use only free fonts licensed for commercial use.

If you have issues with this provider/contractor, shop around.
posted by Leenie at 11:23 AM on July 8, 2013

Yeah, the PSDs and other source files are work product and whether they're given to the client is specified (and paid for) via the contract. Your own words say your goal is to not use the designer in the future, why would they give you more than the end result? Think in terms of hired photographers and negatives. It's not in their interests, generally not in the contract, and typically pulls a high premium (like 3x the price of non-WP deliverables). See also

Furthermore, the copyright you have is necessarily going to be for the website content. Logos and design are not very copyrightable, and tend to fall under trademark if anything.
posted by rhizome at 11:47 AM on July 8, 2013

I'm guessing they use a multi-client file or something like that. Just offer to pay them to turn the PSD into something you can receive.
posted by michaelh at 11:50 AM on July 8, 2013

Best answer: Standard practice would be to just charge you a lot more money rather than refuse you outright, but it's not unheard of. Maybe their reasons are bull.

I've seen a case where someone's client started building additional web sites using the work files essentially as a template, just swapping out some images and colours and argued that since they had bought the work files they could do whatever they wanted with them. If you really stretch, you could say avoiding that scenario is a "copyright issue."
posted by RobotHero at 11:59 AM on July 8, 2013

I'm gonna chime in some more to say that their reasons for holding back their work product may have to do with keeping you as a client rather than the cynical scenario of reusing the same work over and over and you're being charged $1000 for a nickel's worth of effort and expertise.
posted by rhizome at 12:07 PM on July 8, 2013 [1 favorite]

Normally a graphic designer is selling the flat graphics and not the layered files, which can contain technical tricks and secrets that are individual to themselves, fonts they do not have the right to transfer to you, and so on. No graphic designer works expecting to hand those files over unless it is specified from the beginning (and paid for on that basis).
posted by zadcat at 12:18 PM on July 8, 2013 [7 favorites]

Normally all the work they perform on your behalf should be your intellectual property once you have paid them in full for their work. So you should clarify with them what they mean about "copyright issues".

Unless your contract with the client specifies that this is a work for hire, this is not the case by default and you do not own all of the work product.
posted by DarlingBri at 12:40 PM on July 8, 2013

Best answer: There are no standard practices. The copyright/font thing is a red herring. In the business nobody gives a shit about this when you're in the working/comp stage.

Here's the deal. Yes, there is a whole industry out there where you can buy a layered PSD kit and play with it to suit your needs.

Having said that, if you are working with a freelance web designer, it is highly unlikely that turning over working files is part of his/her business model.

Typically in these situations, a web designer's response to this type of request is going to range from "fuck no I never do this" to "I can do this, but this represents added value, so I will do it for a price." A smart businessperson/web designer would say the latter and work out a number, but sometimes they don't, because they feel threatened and don't have the best client management skills. This is also a strong indicator they may not have a lot of professional experience.

Either way, it's really good that you're working this out beforehand. A successful web designer has to anticipate a client's requests before they make them and figure out ways to say yes and put reasonable price tags on things. If he/she is making you feel unreasonable for your request, while they probably have good reasons for feeling so, you should find someone more flexible. If they are particularly talented.. well then, you may have to hammer something new out with them and they may thank you for that. In negotiations like this, clarity and honesty rein. You can ask something like, are you expecting compensation down the road? Because right now we are looking for a design that we can work on in-house once the initial template has been developed. All things being equal, this is a totally reasonable request.

So that the only questions left are, can this person deliver and how much will it cost. And in my honest opinion, access to working files that give you the ability to make changes to the site without the web designer's participation in the future - yes, that should cost more than flat files. I think if you can afford it this would be the best way to structure the conversation. How much more do you want us to pay to deliver this - and then negotiate something that works for you. A little give and take. There are no standard practices.
posted by phaedon at 12:49 PM on July 8, 2013

Best answer: Not that I don't value the New Criticism Theory of AskMeFi, but I notice you have asked three questions about web design which reveal:

1. You think you can do it yourself (but ended up not doing that, and you aren't satisfied with the standard DIY options which would surely have meant a working basic site by now.)

2. You want the best designers but want a non-compete because you don't trust them to actually do best work for you. You reasoned you'd be sending them lots of work in exchange.

3. Now you want to make the designer give you what you wouldn't need if you would be sending them lots of work. And you're obsessing over this when it's a moot point compared to getting the actual project done.

To me, you sound like you don't trust any of these designers (and why would you, if they're doing something you could easily do yourself?) and instead of finding a designer you do trust, you are trying to bend the relationship to ease your fears that you are making the wrong choice. It sounds like they are pushing back against your demands and not to read between the lines too much, but the more you make them live and die by the contract, the more you're only going to get what's in the contract.

You simply cannot hire the best people, treat them like a commodity or an employee requiring supervision and expect the relationship to flourish. I think you should go back to them, clear the air and explain your real needs of which the PSD issue is a symptom. They will let their guard down a bit and then you all can have a real conversation about what you're looking for, what they are looking for, and how you each fit into that. You might find that due to time constraints or whatever, you are committed to the project despite not finding such a good fit and will want to move on -- be honest about that too and you'll more easily make the best of the situation.
posted by michaelh at 12:50 PM on July 8, 2013 [15 favorites]

If the PSD is a purchased template, they may not have the rights to sell the layered PSD to you, only the final, derivative (and flattened/sliced) work.

If the PSD contains stock assets that are licensed to the designer and not to you, they would have permission to sell you the derivative work (the end web files), but not the raw assets within a layered PSD file.

The designer may work on a "licensing" contract, rather than work-for-hire. That means, they license the end product to you (and the license may be a one-time cost, indefinite use), but not any of the work files.

The designer may feel threatened by you asking for the PSD and want to hold on to it as a bargaining chip.

The designer may feel ok giving you the PSD, but it will take a lot of extra time and work to "sanitize" it (name layers nicely, delete unused layers, hide some tricks of the trade, etc.)

The PSD file may end up looking nothing like the final website, as a lot of production these days is done in-browser and not using Photoshop.

In my own business, I generally don't turn over PSDs because of the last reason. Large, multi-layered PSDs of the entire layout are a thing of the past; I use Photoshop for mood/style boards and do most dirty work via a series of small, specialized PSDs, or using things like CSS3 effects. However, I will sometimes turn over PSDs that may have a special image effect for ease of image generation in CMS-powered sites.
posted by Wossname at 12:59 PM on July 8, 2013 [2 favorites]

We want the photoshop so we have ease to modify or template in the future, should we switch to a cms that we manage in house, or another designer if things don't work

That is precisely why they don't want to give it to you. They don't want another designer to profit from their hard work. Without the PSDs its will most likely be more expensive to hire another designer than to continue to send them work. IME small amends are like bread and butter to web design firms - especially if they have minimum billing units. When I worked for a "new media" firm, the minimum billing unit was 1 hour and we would frequently get requests from clients to do jobs that took <5 minutes but they would still be billed for the full hour.

If you've hired a firm that does everything all in one (ie design, development, project management etc) then likely what you're paying for is the completed article. Are they also handling the hosting? From the sounds of your question either your site has no CMS or its not a CMS you can manage yourselves - this is a bad sign unless that's something you were specifically looking for (I know some clients prefer not to have to do anything with their website and just want someone else to handle it). They want an on-going relationship with you, they may have even factored that into the price you were given.

If you'd hired a designer separately then it would of course be standard practice to give you the PSD to pass to the developer (or use yourself) because the design is what you're paying for.
posted by missmagenta at 1:10 PM on July 8, 2013 [1 favorite]

Is this standard industry practice or bs?

The short answer is it varies, but if you're negotiating in advance of work commencing - which it appears you are - then just tell them this is a condition. If they don't agree to it, they don't get the job. Move on to a different designer, and let them know up front that this is a requirement before you get too far along in the process. There are a lot of designers around.

If you're trying to renegotiate after the fact, and you have a contract that says what they think it says, then you're out of luck, and should have though about this in advance.
posted by The Monkey at 6:16 PM on July 8, 2013

What I understand is standard practice is that designers will usually agree if it's negotiated up front. It's just that the work might cost 3x or more.
posted by rhizome at 6:25 PM on July 8, 2013

Response by poster: Thanks for the perspectives, all.

What ended up happening is that I had a discussion about this with the designer, and it is strictly against their policy to send .psd files because they've had some experience with their work being stolen and reused.

I let them know our perspective, which is that as a security measure for our business, it's nice to have a psd file if for any reason the relationship doesn't work out in the longer term. I offered to sign a one year maintenance contract up front as a good faith gesture of planning to continue our relationship, but they still didn't want to part with the psds.

I think we understood each other and we ended up signing the contracts and going forward on the design today, even without the psd files. (Fwiw, I never broached the noncompete issue in my last Ask Mefi question, because I decided it was unreasonable before even going there.)

I think this was a "standards" vs "ally" type of issue as explained in the responses to my previous AskMefi question. This firm sets the standards in our industry, rather than being an ally to any one company. I have to / want to go with them because it's necessary to keep up with the current industry standards. They sort of hold the cards here.

Hopefully the discussion went well and the company and ours can have a good working relationship.
posted by htid at 9:42 AM on July 9, 2013 [1 favorite]

I let them know our perspective, which is that as a security measure for our business

No company lives or dies by the possession of PSD files. You can prove this by the security, such as it is, of the other companies using this same designer. Presumably none of you are getting PSDs, and all of them are still OK.
posted by rhizome at 10:26 AM on July 9, 2013

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