Posted by stevebayerin on August 7, 2008 at 8:15pm
Hey there,
In situations where one received a retainer/starting deposit and the work ends up being 5 times the starter (no price ceiling has been expressed by the client/broker) but has not been paid for in 30/45/60 days of an invoice, does the coder/site builder reserve the right of ownership for all code generated as well as configuration settings of a site?
This is assuming no contract has been written.
Comments
Yes, but
Generally, I would say you own the code until you have been fully compensated for the work agreed to. But, if there's no contract, then technically the client has no legal recourse to stake their claim to the code, except proof of payment for it.
Erik Britt-Webb
drupal@ebrittwebb.com
I agree
I think with no contract just payment would be the proof. I think if it went to court the judge would probably rule to release the code that had been paid for, but unless its huge, huge money that's never going to happen, especially with no contract.
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And thus the importance of a written contract
To spell out stuff like that, tho in the freelance world sometimes that's overkill for smaller projects.
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Well the payment terms were
Well the payment terms were 50% upfront with some work done on my dev server (theme related.)
The final content integration with the theme however could only be done on the live server so the final code lies on their server.
Usually once I hand over a theme file, the work is done however there was extra site construction and configuration involved which before starting on I made sure to negotiate a higher price (I could not guarantee I could complete the new work hence did not seek to accept payment upfront for the new work)which also was agreed on by the broker (without a ceiling) and billing accepted but not paid for (ended up being well within the region of 4 digits once all work had been completed and accounted for.)
I usually wouldn't think of writing out a contract for jobs that are minor (less than 500 USD) but I guess its about time to start creating a lightweight contract (really difficult to havea one size fits all as every job has its own requirements that canno) for minor work that could be dragged on into a time consuming project.
I still have access to the servers. If I had stated out in the contract once work has not been paid for within a specified time period (6 weeks?) all work and code needs to be removed, and cannot be replicated from a backup for production or development use until payment is realized in full, I'd have pulled all the produced work.
What happened to honesty and trust?
To quote myself from another post: "I would say the best "contract" that you will ever have is the unwritten one that evolves from providing ongoing good service at a fair price to a worthwhile customer."
Have you talked to them? What are their reasons? If the client has screwed you and intends to continue doing so, then you need to take care of your own interests, obviously. But, maybe it's just a communication breakdown, lack of mutual understanding, etc.
Currently part of the team at https://lastcallmedia.com in a senior Drupal specialist role.
Well it could most likely be
Well it could most likely be an issue of misunderstanding. The broker (first project wiith him and his company) usually doesn't deal with Drupal projects but was offered a couple of Drupal projects and was able to accept the work as I was available to produce the work/job role (theme file building, panels structure and styling, views styling excluding views building) I was approached for.
The first project I was able to finish the work I was brought on to do as well as other site building work I wasn't obligated to do.
The second one (this one had a pre-payment which on recieval I released initial theme files for the above project and proceeded to work on both projects simultaenously.) For me to finish my part of the work on the second project (initial work started at the start of June and was completed in mid June which included theme files and panels building), the necessary custom modules and site construction needed to be under way (not work I usually supply and my initial agreement previous to the pre-payment stated I would not be involved) before my work could progress with regards to views styling (without significant re-writing of code to theme the site to fit in with the final custom module output. )
As the bottle neck for me to finish my part of the work grew (wire frames were available at the start of June but the site construction work which was views building had not been started in mid-June when I completed initial theme file and panel building,) I volunteered for site construction which I partially backed out from from 2 weeks later at the start of July and asked them to return to looking for a views builder as the scope of the site (News portal with lots of custom panels) required more than more expertise than I have available for views building to reduce duplicated views blocks on multiple levels of content pages (a work flow was not provided to myself and the end client had difficulty/did not express what they are looking for with regards to handling duplicated content issues.) The custom module to generate the views content was not in full working order (till late July) that I could style them in. A few days after the custom module code was in full working order, I was relieved from further work on the site and another company was brought in (this part set the alarm bells ringing at maximum and hence I started to pursue my dues pro-actively) without being paid dues for the work produces. Most likely the company brought in has been building on the work I've made even if the initial code and work produced would be discarded in favor of modified code based on the work I've produced which has not been paid for in full.
While I can pursue the broker (and possibly the end client for allowing the same) for passing my code on (my primary skill is interface design which these project do not cover so I may well be over reacting by over-valuing the IP rights of the produced work) to another company for modification/as a base for building the final site on, I've offered them a waiver on that (since their understanding of Drupal is limited with concerns to the scope of my work) as long as the other projects (one of which is regular css) are paid for adequately within a couple of days as the conflicting project did receive a pre-payment.
Ok, not straightforward,
Ok, not straightforward, obviously. I guess what I'm saying is maybe a non-aggressive approach would work best initially.
Back to the original question... The code was your original work (unless based on some other work.) So it's yours until you formally pass ownership to another party - simply delivering a copy of the code doesn't assign ownership IMO, and I think most people (and courts?) would agree. Since there's no written contract which passes rights to the client then my opinion (I'm no lawyer!) would be that all the code is still yours. But really my point is that if you go down this route (potential future legal action) it gets messy, and certainly you would be unlikely to get future work from this broker/client (even if you wanted it.) So, that should be a last resort. Try telling them that you're very concerned about the delay in payment and ask when it will be paid.
One issue that may be significant if you do decide to get legal with them - what does it say in the code you provided - did you put copyright notices or something similar in the files? I would put something like "This work is Copyright, 2008 (name), all rights reserved".
Hope this helps.
Currently part of the team at https://lastcallmedia.com in a senior Drupal specialist role.
Further thought
As I said, try telling them that you're very concerned about the delay in payment and ask when it will be paid. Add (non-aggressively) that you'll be happy to provide a document which assigns rights to the work to them once full payment has been received, but regrettably won't be able to do so until that point. Hopefully this will drop the hint!
Currently part of the team at https://lastcallmedia.com in a senior Drupal specialist role.
Considering part of the work
Considering part of the work in this instance is turning a visual design into a website and those designs did not have a copyright attached, I'd have to word a license.txt very carefully.
A message about delivering a document which assigns them all rights (retro-actively) is a good idea.
How does the following work
How does the following work out for a license-Coder.txt where Coder is the name of the company or developer producing the work
I haven't had the above checked by a lawyer. I'm not mentioning re-sale rights of work not adequately paid for as thats a whole new story.
The above isn't supposed to replace a well-defined contract but more as a generic license file for theme transformation or similar work that involves dependency on work from external parties to complete production.
a CSA...
I have been trying to find a good CSA ( consultant service agreement ) for a while now. A typical agreement seems to scare the client. I want something that is more ENGLISH... I have been outlining what I require... what I will warentee... what I am not responsible for... I would really like to just makes this a "terms" paper.
but as far as honest y goes, down here in miami most developers take enough money up front to pay for the entire project. The clients are just not professions and dont understand what is required. The best clients are in the big cities.. new york and DC.