How could I deal with my ex-employer for not releasing the design work I\'d done?

20 Jul 2009 - 7:06am
5 years ago
18 replies
731 reads
Tara Goskie
2009

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?

Comments

20 Jul 2009 - 1:44pm
usabilitycounts
2008

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)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help

Patrick

twitter: usabilitycounts | uxlosangeles | cooltechjobs

email: pat at usabilitycounts.com | blog: http://www.usabilitycounts.com

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

The last UX books you'll ever need.

20 Jul 2009 - 1:56pm
Katie Albers
2005

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
katie at 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)!
>> To post to this list ....... discuss at ixda.org
>> Unsubscribe ................ http://www.ixda.org/unsubscribe
>> List Guidelines ............ http://www.ixda.org/guidelines
>> List Help .................. http://www.ixda.org/help
>
>
> Patrick
>
>
>
> twitter: usabilitycounts | uxlosangeles | cooltechjobs
>
> email: pat at usabilitycounts.com | blog: http://www.usabilitycounts.com
>
> cell: (562) 508-1750 | office: (562) 612-3346
>
>
>
> The last UX books you'll ever need.
>
>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help

20 Jul 2009 - 2:28pm
Mark Schraad
2006

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 <taramisuu at 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?
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help
>

20 Jul 2009 - 2:51pm
usabilitymedic
2008

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 <taramisuu at 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?
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help

20 Jul 2009 - 3:02pm
Sharon Greenfield5
2008

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?

20 Jul 2009 - 4:32pm
jet
2008

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

20 Jul 2009 - 6:05pm
jaketrimble
2008

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

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

20 Jul 2009 - 6:10pm
Anne Hjortshoj
2007

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 Trimble<jake.trimble at 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
>
>
> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
> Posted from the new ixda.org
> http://www.ixda.org/discuss?post=43876
>
>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help
>

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

20 Jul 2009 - 6:15pm
Georgia Gibbs
2009

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

20 Jul 2009 - 6:29pm
jaketrimble
2008

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

20 Jul 2009 - 3:37pm
Corn Walker
2008

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

21 Jul 2009 - 4:05am
dirtandrust
2008

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

21 Jul 2009 - 4:46am
dirtandrust
2008

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

21 Jul 2009 - 3:00pm
Hugh Griffith
2007

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 <natobasso at 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
>
>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help
>

--
Hugh Griffith
User Interface Designer

21 Jul 2009 - 3:55pm
Corn Walker
2008

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

23 Jul 2009 - 3:00am
Jared M. Spool
2003

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: jspool at uie.com p: +1 978 327 5561
http://uie.com Blog: http://uie.com/brainsparks Twitter: @jmspool

23 Jul 2009 - 8:55am
Corn Walker
2008

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

23 Jul 2009 - 10:07am
Hugh Griffith
2007

Tara,

I think you might be able to find some answers on the AIGA
site<http://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 <jspool at 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: jspool at uie.com p: +1 978 327 5561
> http://uie.com Blog: http://uie.com/brainsparks Twitter: @jmspool
>
>
> ________________________________________________________________
> Welcome to the Interaction Design Association (IxDA)!
> To post to this list ....... discuss at ixda.org
> Unsubscribe ................ http://www.ixda.org/unsubscribe
> List Guidelines ............ http://www.ixda.org/guidelines
> List Help .................. http://www.ixda.org/help
>

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