RE: Article on Contracting vs Employee

Subject: RE: Article on Contracting vs Employee
From: "David Knopf" <david -at- knopf -dot- com>
To: <intrepid_es -at- yahoo -dot- com>, "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Mon, 28 Feb 2000 10:31:19 -0800

Andrew Plato [mailto:intrepid_es -at- yahoo -dot- com] wrote:

| --- David Knopf wrote:
| > We did a whole bunch of work for Company A. We sent invoices to
| Company A
| > for the work we did. Months went by, and Company A didn't pay.
| Eventually,
| > Company A went bankrupt. Under the contract we had with Company
| A, we had
| > retained ownership of the copyright in our work product until
| Company A paid
| > our invoices, which they never did.
| Okay - I understand. What you did makes sense. But your situation
| was rather
| unusual. Yes - if a client does not pay you, you own the work.
| This is rather
| obvious.

Actually, Andrew, it's not at all obvious. In fact, without a written
contract that says so, it's not even true. Many contracts, including NACCB's
standard contract for contract tech writers, assign ownership rights to the
client as of the moment the writer creates the work. If you've signed an
agreement like that, you do not own the work even if the client fails to pay
you. It's obvious that you should, but the fact is that you don't.

| However, most clients do pay therefore your situation is not
| indicative of what
| most independent consultants will encounter and therefore may
| mislead people on
| this listserv as to the true nature of copyright law.

A good contract works well not only when situations are "indicative," but
also when things go awry. And the situation is not unusual at all: every
contract tech writer encounters a lag between the time she writes something
and the time she receives payment from the client. I've said nothing to
mislead anyone about "the true nature of copyright law." You, on the other
hand, have made a number of totally incorrect statements on the subject.

| > You must imagine me to be much more powerful than I am. I have
| no ability to
| > "corner clients and force them to relinquish rights." And I see
| no ethical
| > problems with protecting your rights as an independent contractor. One
| > effective way to do that is to negotiate contracts under which
| you retain
| > copyright until your invoices have been paid. This is hardly an unusual
| > business practice, even in our industry. *
| My point was that it is dangerous (even unethical) to leverage a
| client with
| copyright law when you are supposed to be working for them.

Nonsense. It's neither dangerous nor unethical to negotiate and sign a
contract that both parties agree to. This is not leveraging, and it's not
bullying. It's standard business practice.

| Contract tech
| writers are hired guns, not world renown artists who must protect their
| timeless art.

Anyone running a business ought to protect their right to get paid for their
work. Who said anything about "timeless art?"

| Given how litigious some people are in this
| country, companies
| get nervous when writers start trying to exercise real or
| perceived rights.

If a company is nervous because a writer wants to get paid for the work he
produces, I think that's quite odd. As I said, our clients don't seem to get
nervous about this at all.

| Furthermore, you're better off letting non-paying clients keep
| the work and
| suing them for breach of contract. A broken contract is a lot
| easier to prove
| than the owner of a copyright.

More nonsense. First of all, there's no point in suing a bankrupt company,
so this strategy wouldn't have helped us at all. Moreover, unless you're in
small claims court, it costs a ton of money and takes nearly forever to sue
for breach of contract. It's *very easy* to prove copyright ownership if
your contract says you keep it until they pay you. We successfully enforced
our copyright ownership just by having our attorney send a letter (cost:
about $250). In California, a lawsuit would probably have taken 2-3 years
(cost: $10K+).

In short, if you've retained the copyright and the client refuses to pay,
the client can't use your work. In my opinion, that's as it should be. If
they do, there are both civil and criminal penalties. While most of us will
probably never deal with a client that goes bankrupt or refuses to pay, I
can think of no good reason for a contract writer to relinquish ownership of
her work without receiving payment for it.

David Knopf
Knopf Online
Tel: 415.550.8367
E-mail: mailto:david -at- knopf -dot- com

Certified RoboHELP Instructor & Consultant
WebWorks Publisher Certified Trainer

RE: Article on Contracting vs Employee: From: Andrew Plato

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