When a business engages a vendor to create a digital deliverable, such as a software platform, app or video, it’s not uncommon for them to be surprised that they do not own the final product, or the “ingredients” that went into it. The surprise usually surfaces only after the project is over and a modification is needed later.
Fortunately this issue is easy to mitigate. This article covers how to do that.
The problem
Not all software and video products are completed and left as-is. Most have a lifespan. They are more like a house. They are built in one project but get enhanced year after year.
Sometimes the original vendor is selected to make these later enhancements, other times they are not. That is because small upgrades can sometimes be done in-house or using a vendor that specializes in the type of enhancement you are making.
Examples of common upgrades include making the product accessible to people with impairments or internationalizing and/or localizing the product to reach new audiences.
To set yourself up for success, you need access to the “building blocks” of the original project. These will be your starting point for future enhancements. For software, this means acquiring the source code. For video, this means getting your hands on the original assets that went into the final product.
The contract you may see first
The contract you have with your vendor is important because issues relating to asset ownership are best dealt with before you start your project. If the contract does not include terms that are favorable to you, it’s difficult to “claw back” what you think should rightly be yours once the project is over. You will have little leverage once that final payment is made.
If you read the contract that your vendor initially extends to you, you may find that the vendor claims ownership the assets they are creating for you. They will “license” the use of these assets use back to you. If you see this language, ask them why they want to do that. Why can’t you just own everything?
One vendor representative told me he was not really sure. That’s just their boilerplate template. I asked him to change the language and he obliged. In most cases, however, the vendor may claim that they need the right to re-use the assets for future work with future customers. That may not be a problem in the case of software, if they want to re-use a module that is generic in nature. On the other hand, if they want to sell a more complete application to a competitor of yours, then it becomes an issue.
In the case of video, if the vendor wants to re-use assets for other customers, that should raise some flags. Are you going to see your original footage, or even purchased stock footage, showing up advertising other brands? Perhaps the vendor just wants to hold all the cards, so they are the only choice for future edits.
Talk through their motivations and yours. Be prepared to walk away, or just make a trade off to assure you have asset ownership.
What to request
For a software product, ask for both the compiled and uncompiled code. That allows you to pick up where you left off when it comes time to enhance the product. Also make sure that contract states that the code being handed off is well commented. That makes it more likely to be understood and modified by your staff or another vendor.
In this case of video, you want to negotiate not only the ownership of the finished product but also the elements that went into the creation of the video. Consider this case: you want to edit the narration of a video, but the audio file you have has both the narration and the background music together. Facts change which affect the narration, but you are stuck. Since the sound is combined with the narration, you cannot change either. You want all the individual files that went into the final product, so you can re-mix them.
Some of those files are big files, which presents a new problem.
Obtaining the assets
How are you going to get all those digital assets? And where are you going to put them once you have them?
For a software project, my suggestion is to set up a code repository and give the vendor access to it. The vendor will be responsible for checking in code as it changes. They may have a local repository that the own as well, which is fine, as long as you eventually get everything in your repository. At this point you may want to get the help of someone who understands software configuration management and development operations involved here to make sure you do not run into issues of which code is the “correct” code among the various versions.
Having code flow into your own repository also allows you to review the code as work is being performed by the vendor. You can use a third party for that, like an hourly freelancer.
Video is a bigger challenge when it comes to transfer and storage of assets. Raw camera footage can have file sizes in the terabytes. Start but deciding where you eventually want to house them once you have them. There are platforms for the storage of brand-related assets such as video, sound and photography. They will work well but can be expensive. There are also some video platforms that support not only the storage of video assets, but also the review of in-process works and web delivery of the final product. A drawback of those platforms is that they may not support all the file types you need to keep.
One option that takes only basic technical skills is to sign up for an inexpensive web hosting plan. Create an FTP account for your vendor and have them upload files onto your server in the cloud. You could go a step further by installing a CMS like WordPress, so you can see and manage the files though a user interface. Now you have a rudimentary video asset management system that you control.
That’s a lot to think about when you have a project you need to get under way. If you urgently need to get your video project started and do not have time to work through the above issues, have the vendor give you a hard drive that has all the assets. If your vendor is in a different location, have them mail you the media in a padded envelope. You will still need to work through the issues of where to eventually put the assets, but at least you have the assets and do not need to negotiate for them after the fact.
I worked for a commercial film production company in 1989 in Miami after college. After a completed commercial, we would pack 35mm film reels and audio tape into a cardboard box to ship to the ad agency in New York. This challenge of asset transfer is not a new one, just one involving smaller boxes.
Summary
Avoid getting stuck buying a digital product you cannot alter. Take the time to think things out and negotiate a contract that gives you the assets you need. Your in house legal department may not be familiar with negotiating digital contracts. Help them out by hiring a freelancer who can get that part of the contract favoring your needs.
How about you? Have you hired a contractor and struggled to get “your” assets back?
Are you a software vendor or video producer who thinks there is a legitimate reason to retain ownership of a client’s assets?
I would love to hear your thoughts.