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What Constitutes a "New Site"
Need some advice on definitions.
Skier




msg:780785
 5:49 am on Nov 13, 2003 (gmt 0)

I am a client of a web designer for a project. The site is up and working fine, but there have been problems getting the site upgraded to the next level of complexity.

I have decided to hire a new web designer to take things forward.

The original designer sent me an e-mail that included the following comments;
I understand that you are working with someone else to take your site to the next level.
I have no problem with this as long as you are developing a new site.

I do not know what changes would make an existing site into a "new site", and satisfy him.

Is there an "official" definitition?

[edited by: Skier at 6:43 am (utc) on Nov. 13, 2003]

 

Solta




msg:780786
 6:07 am on Nov 13, 2003 (gmt 0)

I'm not sure what the exact definition of a new site is, but typically if you pay for someone to design your website, you own the website after the payment has been made. You might hurt some feelings but you should be able to do whatever you want with it.

Skier




msg:780787
 6:42 am on Nov 13, 2003 (gmt 0)

That's sure how I feel about it.
But the law sees it differently. The author has significant rights I believe. I'd prefer to address his concerns if I can.

Smiley




msg:780788
 4:33 pm on Nov 13, 2003 (gmt 0)

I would try calling the original designer. Often problems can be sorted out with a bit more personal contact (itís harder to be rude/misunderstood on the phone). An email can be read in so many ways. My guess is that when you speak to them this problem will simply disappear.

Smiley

divaone




msg:780789
 4:50 pm on Nov 13, 2003 (gmt 0)

i agree completely that contact needs to be done via the phone or even in person. graphic artists and web developers are particularly territorial about their work even if the end result is not the quality you expected. as a web developer myself, i've learned this after a good number of experiences of taking over websites and other projects.

my advice for when you do speak with your former designer is to speak with as much tact as you can muster up. i have to admit, i've done a good deal of pacifying to resolve issues. sometimes its a must.

imho, your former designer should not hold you hostage to this current level of development, but you should make sure you really do own everything first. check to see that you control the domain name, hosting options, etc. recheck your contract for those smaller details as well.

good luck

Skier




msg:780790
 5:06 pm on Nov 13, 2003 (gmt 0)

Thanks for the suggestions.
Yes. I agree that conversation must happen.
However, I still hestitate to open those talks without a better understanding of the definitions.

Does anyone know "what changes would it take to make an existing site into a "new site"?

Depending on the answer, there may be no problem at all.

rossH




msg:780791
 5:12 pm on Nov 13, 2003 (gmt 0)

I agree that first you should contact the original designer and get clear who owns what - odds are good the rest is moot.

My business advice to you is never to commission any design project without insisting on ownership. Photographers very often only allow licensing of their work by clients, and retain full copyright, but I know of no other design or art creation process that does this - certainly not web development.

For digital graphics and custom design, and for programming, I would never commission any work I couldn't own outright. I would always be seeking to "specially commission a work made for hire".

In my opinion as a web developer, you should seek to own any website you commission, it's absurd commercially in this market for any developer to retain any kind of hold on the site after full payment. If there's a maintenance agreement this should clearly reference ownership of the product, and all new creations of maintenance should become yours upon payment. Copyright over code and content should assign to you specifically, and the site should state that. You shouldn't be obligated to add a link to your developer from your site, and the developer should ask your permission to use a screen capture or image representation of your site in his/her portfolio.

rossH




msg:780792
 5:18 pm on Nov 13, 2003 (gmt 0)

Skier

I missed your #6 post writing mine. I don't get this "existing site to new site" concept. No such thing, no such standard.

It's a case of existing vendor replaced by new vendor, the only question is what do you own.

If you don't own the existng site it's time to understand the legalities of your situation.

Once again, I wouldn't have a site I didn't own outright - if you don't own this one, and if you can't use a new vendor to do anything with it you want, then I would consider the cost of scrapping this existing site entirely and commissioning a new one that you do own free and clear.

And don't deal with these kind of people again.

pleeker




msg:780793
 6:02 pm on Nov 13, 2003 (gmt 0)

I'm not a lawyer, and this is not legal advice, but I do read lots of legal mailing lists and forums ... :)

From what I understand (and you should really ask a lawyer about this if you can't resolve it amicably on your own):

US copyright law states that the owner of all copyright in a work belong to the creator. As soon as a web designer creates something that is copyrightable and it is 'fixed" in a tangible form of expression (e.g. - made available on the WWW), the copyright of that work belongs to the designer, not the owner of the web site.

(To my knowledge, this applies only to "works made for hire", not to works made as an employee of a company. In other words, when I design a site for one of our company's clients, I don't retain ownership, our company does.)

The law also allows transfer of ownership of these rights if it's agreed to in writing and signed by the creator of the work in question.

With that in mind, it sounds to me like the existing designer feels he/she retains ownership of the copyrightable elements of the site, and is saying to you that your "new" site better not continue to use his/her work, and better be substantially unique from what he/she created for you.

So the question is: Do you have a contract with the original designer which states who owns the site?

Skier




msg:780794
 6:58 pm on Nov 13, 2003 (gmt 0)

Well, I ran out of time and had the discussion with the original designer a few minutes ago.

Smiley & divaone - You were so right about the difference between e-mail and telephone. Talking directly is critical. We read too much into his e-mail and jumped to incorrect conclusions.

Ross -
My business advice to you is never to commission any design project without insisting on ownership.
Lesson learned!

pleeker - Thank you for the detailed information. All my sources agree with your description of the legal situation.
At a practical level doen't this strike you all as a crazy way of arranging things? Client owns the site but designer owns the code - neither can work without the other. Any "reasonable person" would agree that if you hire someone to build you something, pay for it and use it for a few years - you own it. It is intuitively obvious to a layman. In another field, we used to say that the true test of ownership was whether you had the legal right to sell it to someone else. In this case I think we could legally sell the whole site...

What does the contract say? - There is no written contract. There has been no transfer of author's ownership. Another lesson learned.

So what happened?
It turns out that the designer was not looking at it in a legalistic way at all. In fact his perception was almost the reverse of mine. He wanted to use the code for another project and feared that we might constrain his use of the code. He has no interest in delaying or obstructing our further development of the site.

Now I'm starting to wonder what ownership issues will arise with respect to the updated site. When the new developer has built upon the work of the original developer and we try to secure ownership, will the legal rights of the original designer continue to haunt the project?

pleeker




msg:780795
 7:16 pm on Nov 13, 2003 (gmt 0)

Smiley & divaone - You were so right about the difference between e-mail and telephone. Talking directly is critical. We read too much into his e-mail and jumped to incorrect conclusions.

And I meant to (but failed) mention that their advice was excellent, too. Always the best first step.

pleeker - Thank you for the detailed information.

You're welcome. Glad it helped a bit.

At a practical level doen't this strike you all as a crazy way of arranging things?

Yeah, to a degree it is. But the creator of a work has always been the owner of the rights to that work -- whether it's a song, a book, a painting, a web site, whatever -- the creator has to have some protections. The law gives him/her that.

In another field, we used to say that the true test of ownership was whether you had the legal right to sell it to someone else. In this case I think we could legally sell the whole site...

The law would probably say you could sell the business, since it's your creation. And the domain name. But not necessarily the associated web site, since you may not have the rights to sell it.

He has no interest in delaying or obstructing our further development of the site.

Glad to hear it worked out well.

Now I'm starting to wonder what ownership issues will arise with respect to the updated site. When the new developer has built upon the work of the original developer and we try to secure ownership, will the legal rights of the original designer continue to haunt the project?

Since the original developer apparently wants some protection to be able to reuse his code, and you want some protection that you can move from what he created for you, it sounds like maybe a good parting agreement that allows you both to do what you want is a good idea.

Skier




msg:780796
 7:35 pm on Nov 13, 2003 (gmt 0)

it sounds like maybe a good parting agreement that allows you both to do what you want is a good idea.

A good outcome for both parties always makes the best business sense in the long term. I believe we are close to achieving that.

rossH




msg:780797
 7:35 pm on Nov 13, 2003 (gmt 0)

a crazy way of arranging things

it's good and right that an author automatically holds rights to his/her creation .. it's irresponsible for any contractor to enter into a work for hire arrangement without clarifying resultant ownership.

interesting thought you have about the future, ownership haunting you.

there is apparently a larger body of work than it seemed - I assume programming because no one could be this retentive over html

if there's too much to scrap and if his work is fundamental to new development, then you may as well clear this up now and talk to him about licensing. Go to the trouble of creating an agreement between you that spells out ownership and spells out your rights to build upon the work. I think your new developer is going to want to know about that, or rather, the kind of developer you want to be dealing with next will.

pleeker




msg:780798
 7:41 pm on Nov 13, 2003 (gmt 0)

I think your new developer is going to want to know about that, or rather, the kind of developer you want to be dealing with next will.

Yep. Our first questions when approached by a prospect to redesign a site someone else has built:

How much of the site do you want to keep as it is?, and

How much of the site are you allowed to keep as it is?

Most prospects are baffled by the second question because they assume they own rights to the whole thing automatically. Most don't have any written agreement that spells it out, either.

Skier




msg:780799
 8:06 pm on Nov 13, 2003 (gmt 0)

How much of the site do you want to keep as it is?, and
How much of the site are you allowed to keep as it is?

Yes. Exactly. That was the essence of my original post question.

I don't know the answers. How would any layman client know the answers to these questions? Particularly the second one.

Obviously if it is an upgrade of an existing site, the client does indeed want to retain much of the original, or he would just commission a new one.

Ross - Yes it is not about HTML. There is some unique programming in the back end.

rossH




msg:780800
 11:28 pm on Nov 13, 2003 (gmt 0)

you seem already to be creating an agreement with your programmer - maybe his programmimg can survive all future upgrades, maybe the next developer doesn't need to touch it?

I would say assure yourself of these things, talking to your next developer perhaps, and then getting whatever perpetual licensing you think you'll need. If you seek legal help with that agreement, you might also want to wonder who pays for that, but that would depend on what gets agreed and what your attorney would advise, if it comes to that.

How would any layman client know the answers to these questions?

yes, your programmer was very unwise to have built what he did without any contract - has he no fear of lawsuits?

I always figure the customer is not supposed to know how it works, therefore the developer is obligated to spell it out and set the terms clearly. Lets hope your guy learns from this situation, we know you will.

Skier




msg:780801
 12:27 am on Nov 14, 2003 (gmt 0)

yes, your programmer was very unwise to have built what he did without any contract - has he no fear of lawsuits?

I think he did fear exactly that. We have settled everything to our mutual satisfaction (short of signing the deed). He gets to use the existing code for other projects (non-competative in our market), and we get to take full ownership of the code/site after it is updated.

He signed his latest email with the comment "Thanks for being so cool guys."

:)

maybe his programmimg can survive all future upgrades, maybe the next developer doesn't need to touch it?

Just got the full proposal from the new developer this afternoon. The existing code is fine the way it is, and will simply be added to. Are you getting my mail before I do Ross?

pleeker




msg:780802
 6:42 am on Nov 14, 2003 (gmt 0)

Just got the full proposal from the new developer this afternoon. The existing code is fine the way it is, and will simply be added to. Are you getting my mail before I do Ross?

I think you should contact a lawyer about that, Skier. :)

Sorry, couldn't resist....

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