Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-23 Thread Jared Spool


On Jul 20, 2009, at 6:06 AM, Tara Goskie wrote:


Since I was paid to create the designs, I'm
afraid I may not have the rights to request the files. Is there any
third person I could contact for assistance? What would be the
appropriate way to handle the issue?



Tara,

Be careful about the advice you've seen here.

Employment law is mostly dictated at the state level, not federal. It  
is my understanding that many if not most states default to a work  
for hire agreement, which would mean that the company that pays owns  
the work unless explicitly excluded in a hire agreement.


Illegally harboring copies of work that belong to someone else would  
border on unethical behavior and I don't think we, as a community,  
should be encouraging that. (After all, we'd be all up in arms if the  
situation were reversed.)


IxDA Board,

I think it would be an awesome service of the IxDA to hire an  
employment lawyer to put together general guidance on this issue. It  
would be especially awesome to have said lawyer help with some  
boilerplate contract clauses that we, as a community, could add to our  
hiring agreements, so that we can protect our rights to demonstrate  
our work to future employers and clients.


That's my thoughts,

Jared

Jared M. Spool
User Interface Engineering
510 Turnpike St., Suite 102, North Andover, MA 01845
e: jsp...@uie.com p: +1 978 327 5561
http://uie.com  Blog: http://uie.com/brainsparks  Twitter: @jmspool



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-23 Thread Corn Walker

On Jul 23, 2009, at 4:00 AM, Jared Spool wrote:

Employment law is mostly dictated at the state level, not federal.  
It is my understanding that many if not most states default to a  
work for hire agreement, which would mean that the company that  
pays owns the work unless explicitly excluded in a hire agreement.


Are you confusing work for hire with at will employment? One  
relates specifically to copyright, which is a federal issue, while the  
other relates to labor rights, which is a state issue. There is some  
overlap in concept, however, which is determining who is an employee  
for the purposes of determining whether a work created by an  
employee is a work for hire or not.


The Supreme Court in CCNV v. Reid (1989) laid out a somewhat  
complicated test for whether an employment relationship constitutes a  
work for hire situation. The short version of the test is whether  
the employee was paid traditionally (i.e. the tax treatment of the  
employee), had regular hours controlled by the company, had a  
supervisory or directing role over the work, had control over hiring  
and paying assistants, and if the employer is in the business of  
producing the type of work in question. It's a balancing type test  
which is to say, failing to meet one component of the test does not  
automatically make you a non-employee, rather, on balance the tests  
are to help determine agency.


The easy example is a copy writer for an ad agency that works a 9-5  
job. In this case the employee is paid traditionally, has hours set by  
the employer, and the company is in the business of producing the  
work created. The problem with the creative industries is that many  
people are working on long-term contract rather than as a traditional  
employee. Under such a scenario it invites the question as to whether  
the contractor is an employee for the purposes of section 101(1) of  
the 1976 Copyright Act. For example, a bank may hire you on a two- 
year contract to revamp its website. Your tax status, benefits, work  
hours, control over the work product, and ability to hire and pay  
assistants help determine whether you are an employee of the bank  
for the purposes of 101(1).


If you are determined _not_ to be an employee for the purposes of  
section 101(1) then you are automatically treated under section  
101(2). In that situation, the test is two part: first, the work / 
must/ fall into one of the ten enumerated categories. Second, there  
must be a formal agreement stipulating that the work is a work for  
hire. All of which is to say that as employers it is important to  
ensure that we are explicit in our employment and contract agreements  
and don't just assume that we have authorship or ownership in the work  
(at minimum, however, we can assume we have an implicit license to the  
work, even if it is determined not to be a work for hire).


Illegally harboring copies of work that belong to someone else would  
border on unethical behavior and I don't think we, as a community,  
should be encouraging that. (After all, we'd be all up in arms if  
the situation were reversed.)



Whether it is illegal or not is determined by the authorship and  
ownership rights for the purposes of copyright law. (And if it is  
illegal harboring I would say it doesn't just border on unethical.)  
The safest route, when there is question about authorship/ownership,  
is to store the copies of work with counsel in escrow until there is a  
determination made or agreement between parties.


I think it would be an awesome service of the IxDA to hire an  
employment lawyer to put together general guidance on this issue. It  
would be especially awesome to have said lawyer help with some  
boilerplate contract clauses that we, as a community, could add to  
our hiring agreements, so that we can protect our rights to  
demonstrate our work to future employers and clients.


There may be something out there already, it might be useful to check  
some of the free legal boilerplate websites. Of course this would all  
be US-specific.


All this talk about law and such has me wishing I'd stuck with law  
school instead of going the software route. Maybe it's not too late...


Cheers,
-corn


Corn Walker
Hatfield, MA



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-23 Thread Hugh Griffith
Tara,

I think you might be able to find some answers on the AIGA
sitehttp://www.aiga.org/content.cfm/design-and-business.
There appear to be some articles that address this exact topic.

Best of luck,

Hugh Griffith
User Interface Designer


On Thu, Jul 23, 2009 at 2:00 AM, Jared Spool jsp...@uie.com wrote:


 On Jul 20, 2009, at 6:06 AM, Tara Goskie wrote:

  Since I was paid to create the designs, I'm
 afraid I may not have the rights to request the files. Is there any
 third person I could contact for assistance? What would be the
 appropriate way to handle the issue?



 Tara,

 Be careful about the advice you've seen here.

 Employment law is mostly dictated at the state level, not federal. It is my
 understanding that many if not most states default to a work for hire
 agreement, which would mean that the company that pays owns the work unless
 explicitly excluded in a hire agreement.

 Illegally harboring copies of work that belong to someone else would border
 on unethical behavior and I don't think we, as a community, should be
 encouraging that. (After all, we'd be all up in arms if the situation were
 reversed.)

 IxDA Board,

 I think it would be an awesome service of the IxDA to hire an employment
 lawyer to put together general guidance on this issue. It would be
 especially awesome to have said lawyer help with some boilerplate contract
 clauses that we, as a community, could add to our hiring agreements, so that
 we can protect our rights to demonstrate our work to future employers and
 clients.

 That's my thoughts,

 Jared

 Jared M. Spool
 User Interface Engineering
 510 Turnpike St., Suite 102, North Andover, MA 01845
 e: jsp...@uie.com p: +1 978 327 5561
 http://uie.com  Blog: http://uie.com/brainsparks  Twitter: @jmspool


 
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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-21 Thread Corn Walker

On Jul 20, 2009, at 3:51 PM, USABILITY MEDIC wrote:

I don't know all the legalities but the company essentlaiiy owns  
everything you create so they have no obligation to give you access.


#include std/disclaimer

This is not true in the US. In the US copyright defaults to the author  
unless:


1) The work is explicitly a work for hire

or

2) Your employment contract explicitly states you assign copyright to  
your employer


Otherwise the creative work is considered to be owned by you and  
licensed to your employer.


The laws in other countries will be different. You should check with a  
local advocate as to your default rights and review any employment  
agreements you may have signed. In the future you may want to avoid  
this type of situation, if possible, by following the recommendations  
others have described and by refusing to sign any documents (including  
purchase orders and paychecks) that deprive you of your authorship  
rights.


Cheers,
-corn


Corn Walker
Hatfield, MA



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-21 Thread Nathaniel Flick
This person was laid off which implies he/she was an employee. As
such, he/she has no rights to the artwork created. In fact, they need
to get permission to display that work in a portfolio because it's
proprietary information.

Where did people get the idea that there's a contract involved in
this situation? (scratches head)


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from the new ixda.org
http://www.ixda.org/discuss?post=43876



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-21 Thread Nathaniel Flick
Also, yes you can be sued if you display work that's not owned by you
and claim it as your own. Most of the time we just get a free pass...


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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http://www.ixda.org/discuss?post=43876



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-21 Thread Hugh Griffith
I'm pretty sure there are laws to protect designers facing this
problem. You have the right to employment, and you need to show prior
work to get it. Check out the AIGA web site and see what you can find.

In my opinion, as long as you aren't giving away any company secrets,
show whatever you want in your portfolio. It's likely they'll never
know anyway.

Getting those files though seems to be the bigger problem...

On Monday, July 20, 2009, Nathaniel Flick natoba...@gmail.com wrote:
 Also, yes you can be sued if you display work that's not owned by you
 and claim it as your own. Most of the time we just get a free pass...


 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 Posted from the new ixda.org
 http://www.ixda.org/discuss?post=43876


 
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-- 
Hugh Griffith
User Interface Designer

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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-21 Thread Corn Walker

On Jul 20, 2009, at 10:05 PM, Nathaniel Flick wrote:


This person was laid off which implies he/she was an employee. As
such, he/she has no rights to the artwork created. In fact, they need
to get permission to display that work in a portfolio because it's
proprietary information.

Where did people get the idea that there's a contract involved in
this situation? (scratches head)


From the US Copyright office (note this is limited to US copyright  
law - laws in your country of residence/employ may be different). It's  
not so much that a contract was assumed but a question of whether one  
exists or not, because ownership of the work may hinge on the  
existence of any such contract. Specifically, as applies to a creative  
work not on the exclusionary list, copyright defaults _automatically_  
to the creator/author unless said creator has expressly agreed to  
assign those rights to the employer/commissioner. The way this is  
typically done is as a work for hire or through an employment  
contract.


Believe it or not, even if you are an employee for a company that  
hired you to produce a creative work and they pay you to produce such  
work using company supplied resources, unless you have agreed to  
assign it to the employer you own the copyright to the work. Of course  
there can be some entanglement here when the work incorporates trade  
dress, trade marks, or trade secrets, but this is no different than if  
you as a completely unaffiliated individual create a work that  
infringes the trade dress of Pepsi. Don't just take my word for it,  
though, talk to an attorney that specializes in copyright law.


Of course, even if you do own the copyright that doesn't mean the  
company can't sue you into submission. Lawsuits are an expensive  
proposition and it becomes a pragmatic decision as to whether the  
property in question is really worth the expense and hassle. You're at  
even more of a disadvantage when you don't actually have possession of  
the work. Companies often have much deeper pockets than individuals  
and seem to not care much about fabricating evidence (I have  
personally been involved in a dispute where a former employer lied  
about there having been a contract).


Cheers,
-corn


Corn Walker
Hatfield, MA



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Patrick

We're you a contractor in the US?

Did you sign away the copyright?

On Jul 20, 2009, at 5:06 AM, Tara Goskie wrote:


I have been working for a company creating online software/application
for the past years. Recently I got laid off and they disabled my
connection to the company's server right away. Since I was a remote
employee, I wasn't able to get the design files I'd done for the
company. Therefore, I emailed them to ask for a copy for the purpose
of creating personal portfolio. They transferred my question among
different managers and ended up ignoring my request.

I'm really frustrated because I'd been working for this company
since I graduated and now I'm losing all the design works I've
done, not knowing what I could include in my portfolio in order to
move on to the next job. Since I was paid to create the designs, I'm
afraid I may not have the rights to request the files. Is there any
third person I could contact for assistance? What would be the
appropriate way to handle the issue?

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Patrick



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Katie Albers
This brings up one of those good, general practices: Never leave  
yourself in a position where you rely on your company's server for  
access to work you've done. Companies often turn off your access  
*before* they inform you you're no longer wanted. At least if you've  
copied your work to your own drive on a daily basis, you won't find  
yourself with no evidence whatsoever. At worst you can point to it,  
print it out, sanitize it...somehow make it fit for broader  
consumption. But if you don't have the files, you're entirely at their  
mercy...and you already know they don't have any.


kt

Katie Albers
ka...@firstthought.com
310 356 7550




On Jul 20, 2009, at 1:44 PM, Patrick wrote:


We're you a contractor in the US?

Did you sign away the copyright?

On Jul 20, 2009, at 5:06 AM, Tara Goskie wrote:

I have been working for a company creating online software/ 
application

for the past years. Recently I got laid off and they disabled my
connection to the company's server right away. Since I was a remote
employee, I wasn't able to get the design files I'd done for the
company. Therefore, I emailed them to ask for a copy for the purpose
of creating personal portfolio. They transferred my question among
different managers and ended up ignoring my request.

I'm really frustrated because I'd been working for this company
since I graduated and now I'm losing all the design works I've
done, not knowing what I could include in my portfolio in order to
move on to the next job. Since I was paid to create the designs, I'm
afraid I may not have the rights to request the files. Is there any
third person I could contact for assistance? What would be the
appropriate way to handle the issue?

Welcome to the Interaction Design Association (IxDA)!
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Patrick



twitter: usabilitycounts | uxlosangeles | cooltechjobs

email: p...@usabilitycounts.com | blog: http://www.usabilitycounts.com

cell: (562) 508-1750 | office: (562) 612-3346



The last UX books you'll ever need.



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread mark schraad
The ugly reality here is that if you were an employee or a work-for-hire
contractor you have no rights to access or show that work. Inherent in those
relationship is ownership of your work, which you do not have. Even had you
backed up all of your work locally, and they asked you to destroy those
copies, you would be legally obligated to do so.
Most employer will allow you use work that is not confidential in your
portfolio. Once the work is public domain, in other words published or
publicly used, you can claim credit



On Mon, Jul 20, 2009 at 12:06 AM, Tara Goskie tarami...@yahoo.com.hkwrote:

 I have been working for a company creating online software/application
 for the past years. Recently I got laid off and they disabled my
 connection to the company's server right away. Since I was a remote
 employee, I wasn't able to get the design files I'd done for the
 company. Therefore, I emailed them to ask for a copy for the purpose
 of creating personal portfolio. They transferred my question among
 different managers and ended up ignoring my request.

 I'm really frustrated because I'd been working for this company
 since I graduated and now I'm losing all the design works I've
 done, not knowing what I could include in my portfolio in order to
 move on to the next job. Since I was paid to create the designs, I'm
 afraid I may not have the rights to request the files. Is there any
 third person I could contact for assistance? What would be the
 appropriate way to handle the issue?
 
 Welcome to the Interaction Design Association (IxDA)!
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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread USABILITY MEDIC
This doesn't help you for your current designs but in the future, send  
copies of your work to your personal email address or post them on a  
personal server AT TIME OF DELIVERY TO CLIENT.


You can catalog/org them later but at least you have the files.

I don't know all the legalities but the company essentlaiiy owns  
everything you create so they have no obligation to give you access.



Sent from my iPhone

On Jul 20, 2009, at 5:06 AM, Tara Goskie tarami...@yahoo.com.hk wrote:


I have been working for a company creating online software/application
for the past years. Recently I got laid off and they disabled my
connection to the company's server right away. Since I was a remote
employee, I wasn't able to get the design files I'd done for the
company. Therefore, I emailed them to ask for a copy for the purpose
of creating personal portfolio. They transferred my question among
different managers and ended up ignoring my request.

I'm really frustrated because I'd been working for this company
since I graduated and now I'm losing all the design works I've
done, not knowing what I could include in my portfolio in order to
move on to the next job. Since I was paid to create the designs, I'm
afraid I may not have the rights to request the files. Is there any
third person I could contact for assistance? What would be the
appropriate way to handle the issue?

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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread live

Yeah, sucks.
When it's live, feel free to snag it tho; what are they gonna do sue  
you?


On Jul 20, 2009, at 5:06 AM, Tara Goskie wrote:


I have been working for a company creating online software/application
for the past years. Recently I got laid off and they disabled my
connection to the company's server right away. Since I was a remote
employee, I wasn't able to get the design files I'd done for the
company. Therefore, I emailed them to ask for a copy for the purpose
of creating personal portfolio. They transferred my question among
different managers and ended up ignoring my request.

I'm really frustrated because I'd been working for this company
since I graduated and now I'm losing all the design works I've
done, not knowing what I could include in my portfolio in order to
move on to the next job. Since I was paid to create the designs, I'm
afraid I may not have the rights to request the files. Is there any
third person I could contact for assistance? What would be the
appropriate way to handle the issue?


Welcome to the Interaction Design Association (IxDA)!
To post to this list ... disc...@ixda.org
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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread j. eric townsend

mark schraad wrote:

The ugly reality here is that if you were an employee or a work-for-hire
contractor you have no rights to access or show that work. 


Doesn't it depend on the contract?   I've gotten away with using a 
photographer's contract that allows me to replicate things in my 
portfolio.   And I know that as a client, I've signed off on contracts 
that let the designers use our deliverables in their portfolios.


--
J. Eric jet Townsend -- designer, fabricator, hacker

design: www.allartburns.org; hacking: www.flatline.net;  HF: KG6ZVQ
PGP: 0xD0D8C2E8 AC9B 0A23 C61A 1B4A 27C5 F799 A681 3C11 D0D8 C2E8

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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Jake Trimble
If it was me I would contact a personal friend at the company and ask
for a favor. Hopefully you have made a couple of trusted
connections with people where you used to work.

However, that would be my last resort. You have to understand that
management doesn't always see the forest through the trees. You
should eloquently exhaust all avenues before you go behind their
back. Have you tried HR? You need to explain in your messages that
you don't want material that would allow you to replicate, thus
allowing you to compete against them. I mean we're talking screen
shots here right?

I would concur w/ everyone that this may end up being a tough lesson:
Always back-up your work locally.

And as far as the friend approach, if possible don't correspond
via your former employer's email address. If you have to, keep it
simple and ask them to call you.

Disclaimer: The opinions expressed here are the views of the writer
and do not necessarily reflect the views and opinions of Jake Trimble


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Anne Hjortshoj
Oh, man. Please don't contact HR. It'll likely result in no work given
to you and a resulting rock-solid policy stating that nobody gets
copies of work after the fact, ever (with accompanying legal
paperwork, signatures, and binding agreements).

You're better off going with the trusted friend approach.

-Anne

On Mon, Jul 20, 2009 at 12:05 PM, Jake Trimblejake.trim...@gmail.com wrote:
 If it was me I would contact a personal friend at the company and ask
 for a favor. Hopefully you have made a couple of trusted
 connections with people where you used to work.

 However, that would be my last resort. You have to understand that
 management doesn't always see the forest through the trees. You
 should eloquently exhaust all avenues before you go behind their
 back. Have you tried HR? You need to explain in your messages that
 you don't want material that would allow you to replicate, thus
 allowing you to compete against them. I mean we're talking screen
 shots here right?

 I would concur w/ everyone that this may end up being a tough lesson:
 Always back-up your work locally.

 And as far as the friend approach, if possible don't correspond
 via your former employer's email address. If you have to, keep it
 simple and ask them to call you.

 Disclaimer: The opinions expressed here are the views of the writer
 and do not necessarily reflect the views and opinions of Jake Trimble


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-- 
Anne Hjortshoj | anne...@gmail.com | www.annehj.com | Skype: anne-hj

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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Georgia Gibbs
Since you sound as though you were not a contractor but an employee I
would check with a reputable attorney who specializes in this. I am
not recommending litigation%u2013they can be invisible and still
advise you in your negotiations and you would get better results
perhaps. I know you do not have ownership but I believe there is also
some protections for your ability to seek new employment which you can
not do as easily without samples.


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from the new ixda.org
http://www.ixda.org/discuss?post=43876



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Re: [IxDA Discuss] How could I deal with my ex-employer for not releasing the design work I\'d done?

2009-07-20 Thread Jake Trimble
I said HR because of the need to see the employee contract regarding
the ownership of work. So Anne is right, DO NOT beg any questions
about getting your work back to HR. Just request the employee
contract(s) from them...if it comes to that.


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Posted from the new ixda.org
http://www.ixda.org/discuss?post=43876



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