Forum Moderators: LifeinAsia
Here is the hypothetical...
Suppose you get a commission for a 15 page site, and you submit the home page (only) for approval, with all the graphics, navigation, etc worked out. Then the person says they are unhappy and has their neighbor finish the job - USING YOUR DESIGN.
If that person paid you for the homepage part of the job - but not for the other 14 pages - can the neighbor just take it and complete the project using your submitted concept? Or is that design uniquely your's and therefore is not transferable?
For example, is it necessary to actually spell out in the contract who owns what?
Opinions are welcomed, but would especially appreciate any reference to actual statutes/precedence.
As for me, I have a copyright notice on a clients pages untill he's paid the bill. Then I remove it and put his in.
I'm very lacks with contracts: I don't do them and I should. Perhaps you and I will both get some good advice here ;)
Nick
Ownership very much depends on the terms of the contract. The contract may be work-for-hire, with all rights being held by the purchaser.
Other contracts may specify that the designer retains certain rights to images, code or interface.
Finally, some contracts may give the purchaser exclusive rights for a certain period of time (for example, a year). At that point, rights may be renegotiated or revert back to the designer.
The contract governs who owns what and has rights to its use.
1. When you present the rough draft, have the client sign a short, but to the point, contract where both your rights are protected. In case they decide not to use your work, you keep all the rights as far as layout, images, and coding goes, and they are not allowed to use your idea and have someone else build the page. Also, specify in that same contract that their rights are protected as well, as far as content goes.
2. When creating the final contract, it is always better if the client owns the copyright. However, they should of course pay for those rights. No matter what, specify who owns what, and if there are exceptions.
I have been working for years with project management, and I cannot tell you how important it is with a well formed contract, no matter how small the job might be. It protects your rights as well as your client's rights. And your client can be sure that whatever is discussed between you, it stays there.
If you know how to write contracts, and if that's something you do all the time, it's well worth mentioning in your company profile.
[edited by: rogerd at 8:25 pm (utc) on June 3, 2002]
I would write a very nice letter to stop using your design, or pay up. Of no response, contact your legal team.
Now the catch is - how unique is your design? If the client can easy demonstrate a handful or so other sites, not designed by you, you have an uphill battle...
"...maybe if you are artistic enough, you can retain some rights in perpetuity. Courts have occasionally sided with artists..."
and from Tapolyai:
"Now the catch is - how unique is your design?"
This is getting into the points I am most interested in, and it sounds like it is a gray area at that.
So I'd be curious to know how much of this has been actually tested in a real world court case? The field of web design is all so new, I'm wondering if precedence has been set yet, in a legal sense??
Unless there is a LOT at stake (in my case, the right of US broadcasters to air casino advertisements), your legal "rights" don't mean much unless you have the time and resources to pursue them. For what is probably the small amount of money involved, I don't think you want to get embroiled in a battle over intellectual property rights.
Move on, find some new business, and chalk this one up to experience.
As for your comments, I think you are right on the money. A clear contract helps both sides understand what is expected of the other. When those parties are reasonable, that can really help to eliminate misunderstandings.
However, when one of those parties is not reasonable, then all the contracts in the world won't make a difference. But if we knew which clients were going to be unreasonable, we wouldn't work for them anyway:) So contracts are always a good idea.
Nick
There are two ways something gets copyrighted from the point of ownership.
Employee, which in this case it's out, and made for hire.
The second category of works made for hire is limited to eight types of specially ordered or commissioned works. These are works commissioned for use as:
** A contribution to a collective work.
** Part of a motion picture or other audiovisual work.
** A translation.
** A supplementary work.
** A compilation.
** An instructional text.
** A test or answer material for a test.
** An atlas.
Does a web site fall into any one of the above?
For these types of works, if the hiring party and independent contractor creating the work agree in writing to designate the work as a work made for hire, the work is a work made for hire. If the parties do not have an agreement to treat the independent contractor's work as a work made for hire, it's not a work made for hire.
Even if the hiring party and independent contractor agree in writing to consider the independent contractor's work a work made for hire, the work is not a work made for hire unless it falls into one of the eight special categories listed above.
Clearly, if Reno's work is unique and does not fall into one of the eight categories above, the potential client, who never paid for the service in the first place, is in violation of Copyright Act of 1976.
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This is why I ALWAYS make someone sign a NDCA any time I talk regarding business ventures, or even design ideas.
Lets say you have implemented navigation and 6 nicely labelled buttons. I think you may re-use your navigation code and the graphic buttons on other pages.
I think your client can too. He can add a seventh and eight button using the underlining graphic of one of your buttons. He can use them on other pages too.
However, his new contractor does not have the right to use your code or graphics on another site unless he gets permission from either your client or you.
An awful lot of work gets done by a handshake and with the assumption of the other guy playing fair. I just got burned on something too. Overtime I think the real lose is negligble for small projects. I treat it as breakage or shrinkage or the cost of doing business.
Large projects should always have contracts.
What often happens is that the client is happy with your product except for the price. So he gets a bottom-feeder to help him knock off your genius. Clients like these are a dime a dozen. Most of the time the cost of seeking legal redress outweighs the potential amount recovered.
I guess this emphasizes the need for clear demarcation of boundries regarding "who owns what, until when" and as to how a project will proceed. Communication is key: step by step.
Well, a well written contract that covers close to everything will protect you from most disputes. If not, then it's simply not well written ;)
As far as who owns what ..
[whatiscopyright.org...]
1. I state on what domain and for which purposes the site design will be used for and I adhere very close to a "branded" look to prevent swipes.
2. I digimarc most graphics on the site until the client pays, and then I edit it to reflect their company.
3. Most of my site designs are .ASP, so I keep the form handlers and production code on my domain's host server, and then make the appropriate switches once the client pays.
You get the idea, most of the terms have to deal with protecting me from getting the screw.
I never hand out spec designs to anyone - and I make it clear BEFORE I go in and start the design process (deposit or no deposit) that until payment is complete, the site is owned by ME and cannot be used for business. In most cases, handling their security certs and stuff like that helps lock in your stance of "no pay, no play".
Most clients are great and understand why these terms (and others) are in place. If they don't, and they give you no reason, then they're probably out to get something for nothing.
in the event that a client were to distribute my code, it's unlikely that i would take any action against the client. i doubt if i could be bothered with the hassle and the expense - i would much rather move on to the next job. but having the clause to retain intellectual copyright may help prevent abuse by clients.
From our experience, if a client challenges, sometimes it's best to walk away and not lose sleep over it. If you think you have a case, it will take years to work it out plus the money to do so. Is it worth it?
In Australia, we tend not to get into too many legal battles as the inital meetings and subsequent contracts tend to highlight what is expected in delivery.
The old saying, you get what you pay for!
ProposalKit (proposalkit.com), I think, has templates for copyright and complex contracts. Nolo Press (nolo.com) also has a slew of consulting templates in their books that outline stuff like this.
I'm a plain English agreement writer, myself. I try to protect 'work in progress' through a confidentiality clause in the initial proposal, but bottom line, I don't do work for free. If someone pays me my 'front' money to get started, it's their work. If they ditch me, I've already been paid. No biggie. I try to develop my payment arrangements to cover all of my bread and butter in the first installment.
I'm sorry to hear about your situation, but at least you got some money down.
We don't make a big deal about contracts, rather we take our time meeting and understanding the client, making sure we're a good fit. I've turned down clients of various sizes before, and following up their progress (or often the lack of it!), I have no regrets at all.
In general, we try to rent (ASP format) our websites, which means we automatically keep all copyright, etc and nobody else can touch the websites.
But yes, it all depends on the contract, whether it is an outright sale, renting, or just time spent. It is possible to write the contract in such a way that you just bill for your time and keep all copyright.
Just remember that this is EU law guys! :)
Documentation has to be kept, and it's generally not worth pursuing unless the value is very high, but submitting proof can get a site removed by the web host if it's commercially instead of self-hosted.
A contractor NEEDS to own the copyrights. If the contractor uses the same code (regenertive code) on another site, and they didn't own the copyrights, the first customer could sue the contractor (YOU). Not good!
The contractor would own the copyrights, but the customer would own a license to use their copy of the code any why they choose, unless you have a separate license agreement, which would regulate the terms and conditions of the license.
If you have a library of programs, I would strongly recommend that you file a copyright on them. It cost approximately $30, and they are easy to fill out. If some dirtbag webmaster infringes upon your code and starts creating sites with your code you are not going to be upset. If you tried to stop the dirtbag infringer, the infringer could easily say that he owns the code and you are infringing upon "his/her" code, and demand you stop using "his/her" code. You would be very upset about that. Furthermore, by having a valid copyright TX form you will have much more leverage in shuting down infringing sites. You can also get an injunction if necessary. Make sure that you update it once a year.
One final note. Make sure that you put a copyright notice on the top of your program that looks like this (It could be just commented, instead of displayed):
Copyright (c) 1995-2002 ABC Contractor, Inc.
ALL RIGHTS RESERVED
or
Copyright (c) 2002 ABC Contractor, Inc.
ALL RIGHTS RESERVED
The "ALL RIGHTS RESERVED" protects you in countries that observe the Copyright Convention. Make sure that they are CAPITOALIZED.
One final note. You could list your company and the customer as copyright owners, or just list others.
Copyright (c) 2002 ABC Contractor, Inc.
Copyright (c) 2002 XYZ Customer, Inc.
ALL RIGHTS RESERVED
or
Copyright (c) 2002 ABC Contractor, Inc. & Others
ALL RIGHTS RESERVED
Then there's the issue of derivative works and/or modifications if someone else takes over maintenance. I did a small site a couple of years ago, total design and seo, including ODP and free Yahoo listing.
After a while the site owner went to someone else for maintenance who did unlimited updates, changes and additions for a very low monthly fee, including hosting. They changed only the graphics and removed my name, putting on the logo of the person who made the new banner, buttons and background. All else stayed the same - my site structure, navigation, file names, all the titles and text, the works - intact.
I had no problem with someone taking over product update maintenance and all that goes along with it, but wrote to the lady telling her who owned the copyright (with authoritative links to documentation) and pointed out that when someone found that site at Yahoo or the search engines, it was not accurate or truthful for the person who made the background to have credit for the rankings, and that same as she's a workman and has her tools, I've also got tools, though they may not be tangible like raw materials and equipment.
I could have stopped any changes, but it didn't matter to me at all. The link to me from the homepage is there to this day, and so are the rankings still there. Very informal, and everyone is happy.
It can't always be like that. In another case a site was taken, including graphics, and when I wrote to give credit or change it, they said "make me." So I did.
With design I retain copyright but gladly turn it over if it's amicable. But no one can just take it, it's not their right to. If you design it, it's yours until you turn it over. Someone making changes or modifications brings it into the area of derivative works, which can't be done "technically' without permission of the copyright owner.
Straight SEO is a different story altogether, and I can't remember seeing anything definitive on it.
Depending on the client and the project, we add "teeth" to the NDCA. In other words, we will add a damages clause if our client takes our code, strategies, or concepts to another designer. The damage clause is generally 25% of the estimated contract cost. We have only had to enforce the NDCA once and we won the case in small claims court. Additionally, it is our philosophy that if a client is unwilling to sign a NDCA (with or without teeth) ... then we are unwilling to discuss strategies with them, let alone undertake their project.
Using a mutually binding NDCA, just makes good business sense.
Once we have the NDCA signed and we actually proceed to the contract phase ... our contracts specifically layout what the client rights and responsibilities are and what our rights and responsibilities are.
In the rare cases where we outsource work, we also add the clients rights and responsibilities regarding the outsourced work. Additionally, we add a Non-Circumvent clause to the NDCA if we intend to outsource part of the project. We require Non-Disclosure, Non-Circumvent Confidentiality Agreements with all companies that we outsource projects to.
We customize each client's contract specifying who owns what. Generally speaking, we own the code, strategies, concepts and graphics (unless graphics are client provided).
All in all, it is a good idea to spell out contractually who owns what and what the rights and responsibilities of each party are.
oknp
