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Archiver > APG > 2004-06 > 1086706925

From: "Ken Aitken" <>
Subject: RE: [APG] Would you give an additional report?
Date: Tue, 8 Jun 2004 09:02:05 -0600
In-Reply-To: <000801c44d66$4755e130$0200a8c0@doctorwho>

This is a great discussion, but it has caused me to wonder about something.
Here's the problem. I do a marvellowus bit of research, solving a seemingly
unsolvable genealogy mystery and send this amazing report to my client. Two
years later her 2nd cousin, Reginald, hires me to solve the same problem. I
did the research. I own the report. Do I send that report to the new client?
Do I charge the new client for the time it took to do the original research
and report? What obligation do I have to the original client?

I see this something like the situation of privately contracted court
recorder I knew here in western Canada.I cannot recall all the details of
his work arrangements. However, as I recall He received a set fee from the
court for the transcript of the proceedings he makes. However, he sells
every additional copy of these proceedings to each lawyer or law office
that requests a copy.

What do you think? If I own the report, can I sell it again?

Kenneth G. Aitken
Prairie History Librarian
Regina Public Library
Regina, Saskatchewan Canada

-----Original Message-----
From: Jerry Fitzpatrick [mailto:]
Sent: Tuesday, June 08, 2004 8:39 AM
Subject: RE: [APG] Would you give an additional report?

The problem is that the line between the employee-employer relationship and
independent contractor relationship is blurred in practice (at least in my
profession). My clients do not want the liability that comes with an
employee-employer relationship, but they often want (and may need) the right
to copy and distribute the software I develop for them. I can't remember a
case where I was permitted to retain copy rights to the software or other
materials developed on their behalf.

Regardless of whether my experience falls under the work-for-hire laws, how
does the question of ownership get resolved in the absence of a specific
contract? Referring back to my example, who owns the paint: the homeowner or
the painting contractor? Why?

If I hire a mechanic (an independent contractor) to fix my car, and they
replace some of its parts, I expect him/her to destroy those parts or give
them to me, not to sell them or use them for a home project. What does the
law say about this?

If I hire an architect (another independent contractor) to develop a
blueprint for a house I'd like to build, who retains rights to the
blueprint? As a non-lawyer, I would be very unhappy if the architect started
selling the blueprint to others. After all, I paid for its development.

Likewise, if an independent genealogist prepares a report for a client, why
wouldn't the client retain the rights to it? What stops the genealogist from
selling and re-selling the same report to everyone in my family, or to the
public at large? If the client doesn't retain rights to the report they are,
in effect, licensing public information from the genealogist. This is either
a gold-mine or a rip-off, depending upon which side of the fence you're on.

In my profession, a software application can easily cost hundreds of
thousands of dollars to develop. The reason such an application is available
to a PC user is because they pay a licensing fee for their *copy*; a price
that is much less than the development cost. In essence, the development
costs are amortized over all licensees. If the company gets enough
licensees, it makes a profit. If not, it loses money. The risk is assumed by
the company because it provided the funding.

If I hired a genealogist, I would be providing the funding and taking the
risks (after all, there is no guarantee that the research will bear fruit --
the genealogist gets paid either way). I would *not* assume that I was
licensing information from them; I would assume that I was paying them to
locate and provide information that I could use as I please. Frankly, why
would I agree to bear the full cost of R&D only to have the genealogist
re-sell of re-publish the information?

Jerry Fitzpatrick
Software Renovation Corporation


-----Original Message-----
From: Lynne Darrouzet [mailto:]
Sent: Tuesday, June 08, 2004 8:26 AM
To: ;
Subject: RE: [APG] Would you give an additional report?

Generally, "work-for-hire" exists in an employer-employee relationship
rather than an independent contractor relationship. Without an
employer-employee relationship, or without a contract specifically creating
a "work-for-hire" relationship or assigning ownership of the copyright to
the client, then the creator owns the copyright.

Copyright can be a very complex subject and I agree that it needs to be
spelled out in our contracts with clients so that everyone understands up
front what can and cannot be done with the work.

I too have had a client ask for an electronic report. With a great deal of
trepidation, I did end up supplying the client a PDF report that I
restricted from copying or modifying. I also reiterated to the client my
concerns about preserving the integrity of the report and asked him to pass
this information on to his relatives. But I think this request will become
more and more common.

Lynne M. Darrouzet, JD, CGRS

-----Original Message-----
From: Jerry Fitzpatrick [mailto:]
Sent: Tuesday, June 08, 2004 6:27 AM
Subject: RE: [APG] Would you give an additional report?

The issue may even be more complex than Natalie suggests.

I'm a software consultant, not a lawyer or a genealogist, but most of my
development projects are considered "work-for-hire" under Federal law. As I
understand it, the premise of work-for-hire is that the client has paid you
to develop something and therefore owns the rights (including copyrights) to
what you have developed on their behalf.

If, for example, you hire a painting contractor to paint your house, you own
not only the paint on your house, but also the leftover paint. It is both
unethical and, I think, illegal for the contractor to keep the leftover
paint unless you have given them specific permission to do so.

Essentially, you own all the paint because you paid for it, regardless of
whether the contractor is afraid you might do something "bad" with it. For
example, you could personally repaint parts of your house, making the
contractor's work look shoddy. You could drink part of the leftover paint or
pour it on your carpeting. You can do whatever you want with it because you
commissioned the work and paid for it. None of these actions is the
contractors responsibility however.

As with all business, the waters are muddied when you don't have a contract
spelling out who has rights to what. I wouldn't assume, though, that you
"automatically" have (copy) rights to a report just because you wrote it.
After all, you probably wouldn't have written it if the client hadn't paid
you to do so.

Any lawyers care to comment?

Jerry Fitzpatrick
Software Renovation Corporation


-----Original Message-----
From: Natalie Cottrill [mailto:]
Sent: Tuesday, June 08, 2004 3:17 AM
Subject: RE: [APG] Would you give an additional report?



When the subject of "copies" comes up, electronic or otherwise, one has to
regard copyright law. When an individual creates an original something (a
report, design, etc.), the individual owns the copyright to it. Despite any
other factors (business model, personal opinions, etc.), copyrights are
regulated by the government. I feel that the previous professionals'
questions regarding "do I send an electronic copy and if so, do I charge
extra for it?" deserve reflection. As "feel good" as the "let's all share
and be happy" type of reply is, it didn't mention copyright laws, and it
didn't answer the very specific question of "should I charge extra for the
copy?" I thought these were both valid points, and showed that our
colleagues are considering the ramifications of their actions on themselves,
their clients, and their colleagues.


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