There’s a disturbingly large contingent of delusional people that feel that a consultant’s work is automatically “work for hire”. These are the folks that feel they can buy an image for $5 and maintain exclusive rights or pay a web developer $100 and have a web site that is unique, professional, and functional. What’s worse is that they assume that ownership of rights of use (think Creative Commons licenses) means full ownership – there’s a world of difference there, kids!
Personally, I feel the term work for hire is a dirty phrase. The average client has tight budgets and can’t pay for full ownership and exclusivity yet the expectation is that a consultant or freelancer always offers their services as WFH. This is simply not true, nor is it fair. It’s bad business for all parties involved.
So, WTF is “work for hire”?
I’m no lawyer but I’ve dealt with lawyers and legal jargon enough to understand that there are explicit and implicit rules for establishing ownership to intellectual property or content of any sort. “Work for hire” essentially means you work behind the scenes and maintain no rights. When I do work as a ghostwriter, I get paid large sums up-front for the right to give up any credit. This means I can’t make any claims to the work, not even on a resume, unless I keep it anonymous. Ghostwriting is the exception to the rules stated herein and, unless you sign an NDA or NC contract that stipulates ownership explicitly, the rights to content and end products are shared as far as I’m concerned. Am I wrong in thinking this?
Consulting is tricky because there are no real standards for billing rates but pretty much every client will try to underpay if they can get away with it. This is understandable: everyone wants more profits and savings. The typical assumption is that you do the work, then it’s theirs, and you move on until you’re needed again. This is what I call “one and done” work – it’s a real grind and rarely worth the effort unless you’re desperate. These days, I do not bother with work for hire projects because…
- It rarely leads to referrals or future work (unless maybe I beg).
- It is not very profitable, nor is it efficient use of time.
- It pulls me away from things that create long-term value for my brand(s).
I appreciate the fact that everyone is looking for a deal and wants to maximize investments but no one wants to be an indentured servant. Project parameters and boundaries must be set to protect all business interests and circumvent any squabbles. I’m all for giving freebies and value-added services but I’m not going to work for peanuts and neither should you!
…And now for story/rant time with Yogizilla!
A Personal Story About Content Theft
You guys and gals know I love my rants but this time I am going to get very personal. I am going to mention names and possibly burn some bridges… Normally, I believe in being prudent and tactful but I also believe in accountability. People have to be held accountable so they can realize what they are doing wrong and grow.
Truth be told, I see a lot of otherwise great business relationships crash and burn due to failures in the areas of managing expectations (a frequent theme here on Y3B) and working through misunderstandings. This is why I wrote my article about the importance of staying on spec and communicating expectations properly. It’s amazing how even the most mature adults can turn into little kids over simple misunderstandings. In fact, that is exactly what happened between Lauri Flaquer of Saltar Solutions and I during the Rich Habits re-launch project.
I won’t get into the full story because there’s really quite a bit to it but the aforementioned article does give you more background. Essentially what happened is that I had gone 40+ hours over the original projections for a project involving data migration, market research, copy editing, web development, programming, SEO, social media integration, and tons more. At every step of the way I was clear that I was way over my hours and was essentially working for free. I did not say this in a mean-spirited way but perhaps it was taken that way.
Anyone who knows me knows I am super-friendly, easy to work with, and flexible.. But even I have my limits!
Well, about two months had transpired before I had received the second half of my payment. Even with that balance paid (which I did not get until I practically harassed certain people and got the run-around), I was putting in tons more work than was originally specified. As such, I reminded the PM, Lauri, and our client, Tom Corley, that I was doing certain things as value-added but we would soon have to revist expectations for web site maintenance and billability thereof.
I noticed Tom had been avoiding the subject and then realized that Lauri had issues with the fact that I signed off my work and expected more pay. I explained that Tom was fine with this and that it was to be expected given how much I was undercutting my rates. There was no formal contract for ongoing work (that was my mistake) nor was I paid to release my work fully so I had to protect my own business interests by at least having marketable work. Of course, though matters of billability were ignored, there were plenty of change requests and requirements sent my way.
A business relationship is meant to be a mutual thing. Once it becomes one-sided, bad things happen.. And kittens cry.
Well, since Lauri worked on a “one and done” basis, she expected me to do the same. This resulted in her placing a negative spin on my good intentions when speaking with our client in private. She basically made it seem as if I was trying to milk him even though I went through my billing line-by-line and explained all the value I delivered. This set bad things in motion.
What started as a simple understanding that I would be kept on retainer for weekly content updates and media uploads turned into ostracization and very short responses. We consultants and freelancers know what that means: we’re being cut out and replaced. Fortunately, Tom showed me the conversations between him and Lauri so I was able to see that she was being rather two-faced. I had my closure but, at the same time, this meant I was being forced out of a project I truly believed in due to one person’s pettyness.
Fast-forward several months later and I noticed that my signature and landing page link was replaced. Now, instead of RichHabits.net showing “Developed By Yomar Lopez” it read “Developed By Patricia Vollherbst”. Excuse me?? So not only do I get nickel-and-dimed but now someone else is stealing the credit for work I performed?
That there is content theft no matter what the circumstances. Heck, Lauri had made a big stink about my tiny little by-line in the footer yet she allowed this? Needless to say, I was astounded by how petty she is being, erasing me completely from the project. How could you do something like that and call yourself a professional? Consulting thrives on building trust between all collaborators and I’ll tell you: this killed any trust I had.. And I am generally considered TOO trusting.
A big part of the tension here was rooted in a deeper issue: a disconnect between our core values and marketing philosophies. You see, I believe that great online content can be just as powerful, if not moreso than, traditional media but Lauri felt threatened by that because she is convinced that the only thing that sells is national media such as TV and radio. Heck, I don’t see why they have to be mutually exclusive; really, these strategies can and should work in tandem!
Regardless, a disagreement or misunderstanding does not justify theft. Even if money was exchanged, there are guidelines, courtesy, and licenses to consider. Essentially, I rented out a car and someone decided to keep it. Shame on you!
Mind you, I did try to resolve this peacefully but I was ignored at every turn. I can take a hint. Now I vented in a civil manner.. There, that feels better. *wink*The Real Problem Is Not Content Thieves
I see quite a bit of hubbub from online marketers worried about content thieves. Content scraping is a very real thing but it is not as big of a threat as people make it out to be. You see, duplicate content is easily identified and search engines today have complex algorithms for determining any content’s origins. Attribution happens contextually and automatically so all the scrapers actually drive traffic to the original works and build credibility.
No one should be worrying about copycats. Besides, we as creatives should consider it flattery!
In my case, I released work for use by a specific brand. We had worked out terms for said use and the continued business relationship. In lieu of that, I billed out at a reduced rate as a sign of good faith in hopes that we could agree on a long-term arrangement. The conversations hinted that we’d be looking at a one or two-year track, paving the way for new books by the author and marketing strategies built around the concepts in these books.
Unfortunately, my client was not the shot-caller so our understanding meant nothing to his PM/PR person, Lauri Flaquer. She decided to keep herself billable, she needed to convince him to cut off any cost centers. As she said herself, “My job is to save my clients money.” With that, she thought it would be okay to have someone else take over on an as-needed basis and steal credit for my work.
Mind you, I am not by any means a caustic or toxic person.. But I simply cannot stand for folks that steal in this manner. It’s just not right.
I’m sure some people reading this may be thinking, “She was in the right.” I disagree but I have heard the counter arguments. Here’s the thing: billing is about more than just pricing. When you bill out, you set terms. When you pay the bill, you’re implicitly agreeing on certain terms. If those terms are agreed upon verbally and/or in writing, there should be no surprises or shocks.
There should be no assumptions that content is exclusively yours, especially after it was made clear that billing account for man hours, not license to exclusivity or complete ownership. Again, ownership of right to use are NOT the same as complete ownership. This applies in every industry. In music, artists using samples or lyrics from older works have to pay royalties. Those royalties increase depending on the amount of borrowed work and the credit that is given. If you provide no credit, the royalties are paid out at a higher premium. It’s quite simple, really.
With all that in mind, I warn any freelancers and consultants out there to be clear about your pricing and consider future work. Unless there is a firm, legally-binding agreement for maintenance or some sort of ongoing business relationship, you simply must bill out a higher rate and protect yourself. Even subcontractors must be wary of being short-changed because no one should work for pennies on the dollar unless there is promise of future work via referrals and/or out-of-scope deliverables.
Distinguishing Fair Use Vs. Blatant Bad Theft
CORRECTION: Ms. Tung informed me that this is actually an image from Austin Kleon, author of Steal Like an Artist. Still, I cited the source I snagged it from so I did my part.. And MEGA KUDOS to Angela for giving credit where it’s due – you ROCK!
I really like this chart by Angela Tung. It reminds us that theft happens in business all the time, but there is a proper/legal way to borrow content and concepts.. And then there’s the douchey way of doing it. Note that credit is considered “good theft” because at least then you exchange something in the place of currency.
If you steal credit for someone else’s work, it is plagiarism.
Back to the music industry, you’ll note that remixing is considered good theft. It makes sense that all remixes credit the original artists, with the artist or DJ doing the remix included in brackets or paranthesis. This is good practice for anyone honest in the business world, folks.
On YouTube, there are artists that sell beats to be used in songs. I’ve seen people troll these artists because they resell these beats but what do they expect? If you’re paying $15 for a song you really can’t expect exclusive rights or full ownership.
Proper attribution is the name of the game. So what does that look like?
- A credits page or plug citing source materials and contributors.
- A logo on a splash screen or opening sequence.
- A source caption showing the original site or author.
- A hotlink on or around the image or embedded content.
- A by-line clearly defining who contributed in what capacity
The last one is a real winner in my book. In my case, I would have no problem with Patricia of CNC (Colts Neck Computing) plugging her name in the footer as the current webmaster so long as my name remained. She could rewrite it as “Developed By Yomar Lopez, Maintained By Patricia Vollherbst”. Heck, it could read, “Developed By Patricia Vollherbst & Yomar Lopez”. That is fair and proper.
Content And Information Are The New Currencies
Let’s place this all into perspective. Content and information are the currencies of the online marketplace right now and for many years to come. Just look at how Google has approached the issues of copyrighted material of third-party content.
Try including a movie trailer in a video you produce. Whether you monetize it or not, chances are that they will ding you for using third-party content. While this can get rather annoying for we, the little people, it’s great that Google cares about attribution and giving credit where it’s due.
Great or remarkable content comes at a high premium, especially when you have little guidance or support during the creative process. Sure, you can still get cheap work done but you get what you pay for. The way I look at it, if you cut corners and under-value the work of your contributors, you don’t truly value what you are building.
I see lots of craziness about how content is not king. I don’t see how anyone could fathom that considering we keep seeing new ways to consume content. Just look at Vines, Tumblr, Pinterest, StumbleUpon, Reddit, and the like.. They’re all still growing and I don’t see the growth stopping any time soon.
In contrast, consider the slew of web sites that are essentially static entities or boring brochures. Look on Facebook and Twitter, too: there are tons of abandoned and spam accounts, where all you have are self-promoting pieces, random retweets, or long periods of silence in between updates. This is a very sad state of affairs.
I believe the root issue here is that people do not value content enough. They are still dipping their feet online while they place all their dollars behind branding and traditional media. Stealing content cuts all the legwork out. It’s lazy and it’s safe.. But that doesn’t make it right.
When I blog, I often use images I snag on Google search. I make it a point to at least provide a source caption, if not a backlink to the source material. I think this is fair but, if someone asks me to take down their content, I am happy to oblige and find alternatives.
Really, I think it is flattering when my original works are mirrored on other sites and I don’t see the point of pursuing those kinds of thieves. The real thieves are the ones stealing credit for our hard work or getting away with cheap labor. Be warned – there are plenty of those offenders out there. Be sure to call them out and help our fellows out. Hold those thieves accountable!
What are your thoughts on work for hire and content theft? Have any similar experiences you’d like to share? Leave ’em in the comments and we’ll keep this rant going strong!