Recently I heard a story that bears repeating:
Several years ago, a well-established company had hired a website designer to create their website for them. After working with this graphic artist for several years, they decided to move to a new graphic artist (my colleague). At the same time, they decided to move to a new hosting company, so they simply copied their website files from the old hosting company and moved them to the new hosting company. After all, they owned the website, didn’t they?
The surprising answer is No. Since the previous graphic artist and the client didn’t have a “work for hire” written agreement, many courts would say that the previous website designer (not the client) still owned the work. And “work for hire” agreements might not cover the copyright complications of both the graphics work done on behalf of the client, and the software coding work done.
It would seem to me that a fair resolution to this type of case would be to use the assumption that the website designer was doing work for you, and therefore you own the work. In the legal world, this may not be the case, as websites include both graphic work and software coding work. These two types of work are protected differently under copyright law.
If you’ve hired a website designer to design your site, check your written contract. Make sure it clearly states that YOU own the website upon full payment to the designer. If you never had a written agreement with your designer (or if your current agreement does not have this clause in it), it’s time to re-negotiate with your designer. Get it in writing. This is no time for verbal agreements.
When we ran a website design firm, our Passion For Business website design contracts clearly stated that the client owned the copyrights to the work we did for them. There are a few places where this may not apply: if you purchase stock photography or graphics for your site, then the original artist owns the copyright, and if you purchase a theme (like a WordPress theme), the theme designer still owns the copyright to their design work. Most stock photo and theme websites will grant you a license to use the photo/artwork, but will not give you the full copyright to the work. (This is also the case if you use plugins for your site/blog. The original designer/coder of those retains the copyright.)
If you feel awkward or embarrassed to speak with your website designer and ask for this in writing, then you are putting your business success in jeopardy. Don’t delay. Take care of this immediately.
What happened to my colleague in the above situation? She had to completely re-design her client’s website to comply with copyright law. It was good news for her: a nice revenue stream and a new, ongoing graphic design relationship with the client. It was bad news for the client: they had to pay for a brand new website design or risk being sued by the previous graphic designer. In the end, the client got a better website than they had before, but at the cost of a lot of time, money and frustration.
Read the companion blog post: Has Your Website Designer Disappeared? for tips on what information you need to get from your website designer to protect your website.