Legal framework for consultancy work?

Subject: Legal framework for consultancy work?
From: Geoff Hart <ghart -at- videotron -dot- ca>
To: TECHWR-L <techwr-l -at- lists -dot- techwr-l -dot- com>, The Documentation Doctor <documentationdoctor -at- googlemail -dot- com>
Date: Sat, 03 Dec 2005 10:23:18 -0500

The Documentation Doctor wondered: <<I'm reappearing under a new online identity after a couple of years of absence, having decided to reinvigorate my career by building on my out-of-hours technical authoring consultancy work.>>

Congratulations. I've generally enjoyed working as a wage slave, but enjoy the freelance life so much I can't imagine going back to work as an employee. The freedom to fire unpleasant or unrewarding clients (which I've done a couple times now) is priceless.

One generall overall comment about your questions: Since you're asking about legal implications, you really need to invest a few bucks, pounds, RMB, or whatever in a lawyer's advice. Legalities vary, often dramatically, among jurisdictions, and you need specific advice for the jurisdiction you're working in. When it comes time to sign contracts, one standard clause for any contract is a statement about whose jurisdiction the contract is governed by; this is particularly important if you're working across national borders.

That being said, most jurisdictions seem to follow the legal principle that if everyone understands the terms of the contract and agrees to those terms, then everyone is bound by those terms:

<<1. Templates and copyright: If I create a Word template for a client, I would expect them to own the design elements, but what about the Styles and any macros? How do other people get around, e.g. having to use a different kind bullet each time?>>

First off, you must always clearly distinguish between doing a "work for hire"--in which case, the client owns the work outright and you cannot reuse it without their permission--versus simply providing them with a template that you reserve the right to reuse. Graphic designers face exactly this problem, and if you can find someone who does graphic design in your area, they can provide clear advice on how they handle this issue. But the key thing is to be clear about this in your contract or statement of work.

Next, you need to distinguish between standard design elements and _custom_ elements. You could make a very good case that anything that comes as a standard design element in Word, such as the default round black bullet, cannot be copyrighted or trademarked because it's out in the public domain--or a bit more legalistically, it's provided royalty-free to everyone who uses Word by the grace of Microsoft.

You can't really copyright or trademark the _elements_ of a design unless those elements are themselves original (e.g., a logo or trademark phrase). All you can do is copyright a design that is clearly different from other designs. Think of it this way: I can't copyright any of the words in a dictionary, but I can--and do--copyright how I assemble those words. Analogously, you can't copyright round black bullets, but you can copyright a design that specifies an exact and unusual position from the margin combined with exact typographic treatment (e.g., font size, leading, kerning).

In any event, why would you want different bullets for every client? Unless the form is more important than the function (i.e., much graphic design), a bullet should be like any other punctuation: entirely unobtrusive, and only visible enough to serve its purpose.

<<2. Liability: Am I right in saying that, in paying me for the final document, they are accepting that it's fit for purpose? Is it usual to state this explicitly somewhere.>>

I state this explicitly in my contract or correspondence, and recommend that you do so as well. You also need to explicitly state how you will deal with the review and approval process. For example, my standard editing contract is basically as follows: "You are paying me for one edit plus all discussion necessary to achieve consensus on the details of that edit. You're the expert, so you take responsibility for assessing whether what I did was right, and if not, we discuss it until I provide you with a satisfactory solution. But once we're done talking, you confirm that you are satisfied with the final quality of the work by paying me. After that, any additional work is by the hour."

<<3. Contracts: Currently, I do the odd small job and submit the final result along with an invoice, without ever signing a contract. Is this a common way of doing things, or do I need to get a standard contract drawn up?>>

For large and expensive jobs, you need a formal contract. But even for the smallest possible amount of billable work, you need at a minimum a written (including e-mail) agreement about what you are being hired to do, what you will be paid (and when), and so on. I have a small PDF that I send to all my prospective clients, containing my standard terms. I e-mail this to them before I begin work accompanied by a simple statement: "Here are my standard terms. If these are acceptable to you, I will begin work on [date] according to these terms. If not, let's haggle over terms more suitable to you."

This works fine because most of my work is only a few hours long (lots and lots of small manuscripts). Once I've established a working relationship with a client, I don't keep sending them the agreement each time, but I will send a "reminder" annually to regular clients to protect myself. For larger projects, such as books and compilations, I won't work without a formal legally binding contract, and I specify a series of intermediate payments rather than leaving it all to the end. That's the only way to ensure a client doesn't go out of business without paying you.

If you're doing writing, it's worthwhile making explicit something that is generally left implicit, sometimes at the expense of the writer: that the copyright to anything you write remains fully in your name until you've been paid in full, and that use of your work without payment thus constitutes a copyright violation. You can legally force someone to withdraw a product containing your writing from the market--at great expense if they've already printed and mailed it--if they refuse to pay you but still use your work. If you take the additional step of formally registering the copyright, you are then entitled to statutory damages (e.g., US$20k for one colleague) without having to prove any financial or other damage to you. This really makes recalcitrant clients sit up and take notice. <g>

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Geoff Hart ghart -at- videotron -dot- ca
(try geoffhart -at- mac -dot- com if you don't get a reply)
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Legal framework for consultancy work: From: The Documentation Doctor

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