Recently I heard a story that bears repeating:
Several years ago, a well-established company hired a website designer to create a website for them. After working with this design firm for several years, they decided to move to a new website designer (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 website designer 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 plugins 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.
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Hi Karyn
We had the same situation years ago with our website. That is why we developed a company MMPA (Marketing, Media & PRoduction Assitance) utilizing my husbands 15 years of IT to help small business owners get a website they own, it’s up and running in a week with a Google presence and we did not clean out their pockets :). They are also taught how to modify it themselves, if you can do a Word doc then you can modify it.
It is really scary when you find out after all that money you do not own it.
Robin
RobinHardy.net
Good for you and your husband, Robin! I believe anything that empowers the small business owner is helpful. We always suggest to our website design clients that they may want to update the text on their site themselves. There are so many choices in website technology these days: DreamWeaver/Contribute, blog platforms, CMS platforms, etc. And if the client doesn’t want to maintain the site themselves, or isn’t interested in learning the software tool, then delegating it to a website designer or virtual assistant for maintenance is a great way to free up your time.
I am SO glad I subscribed to your blog posts. This post should be a must read for all business owners. I just wonder one thing though – what law applies ? The law of the country where your business is based or the law of the country where the web designer is based ? and if the latter then what happens if they outsource to a designer based in yet another country ???
Hi, Gill,
I’m not a lawyer, but my best guess is that the law applies in the country of the copyright holder. So if you hire someone from Tibet to design your website, that written contract must state that YOU own the copyright to your website design and coding, even if the work was done in another country.
You can check on http://www.nolo.com or http://www.copyright.gov to see if there’s any legal advice out there on this topic.
Warmly,
Karyn
Karen I wanted to let you know I tweeted the link to this post – important info!
Gill – two things – there are international copyright laws, and when you write a contract you specify what law will apply. Absent a written contract it could get to be a long legal argument as to what should apply – when you are dealing internationally you should be very careful to specify.
– Megan
Thanks for the info, Megan. Since I don’t work with international vendors, I’m not aware of contract law applications.
Another thought: if you ARE working with an international vendor for your website design, coding, blog creation, writing, etc., typically it is the VENDOR who supplies the contract. I would definitely run this contract past your own attorney before signing. Full business websites can run anywhere from $3,000 to $10,000, so it’s worth paying an attorney $250 to review the contract so that you don’t lose money if you have to have a second website created because you didn’t own the first one.
If your international vendor does not supply you with a contract, or if the contract does not state that you own the copyright to the entire website, have your attorney write a new contract with these protective clauses in it.
Warmly,
Karyn
PS just posted this to Facebook as my tip for the day\
Thank you
Robin
As a professional web designer and evangelist for ethical business practices within the creative industry, I have to heartily object to the crux of your argument, “the client didn’t have a “work for hire” written agreement”.
Work-For-Hire is a cancer in the creative business and there are no circumstances, in our opinion, that require such an unfair and damaging agreement to be drafted.
Please refer to our site, http://www.stopworkforhire.com, for more detailed information regarding work-for-hire. Under Federal Copyright Law, projects must meet very specific criteria in order to qualify as work-for-hire. Due to legal loopholes and lax enforcement, work-for-hire is the most thoroughly abused copyright clause used in contracts today – almost exclusively to the detriment of the creative community.
Any designer worthy of calling himself or herself a “professional” should be well versed in tailoring the “ownership rights” every client should be guaranteed upon final payment for creative development services. Every contract should explicitly state that the client, at the very least, “owns all web site files and assets”. This, however, straying into another misguided piece of advice, does NOT include source files. Ownership of source materials, “intellectual property”, are typically negotiated by payment of a separate fee.
Source files contain the “blue print” from which a design was created. Turning these over to a client as a “bonus” simply means that the designer is giving up his proprietary “process”, any rights to future work, and all protections he has from the client turning his or her hard work over to a cheaper vendor.
Over the course of a fifteen year career, I have heard of no similar story about a designer claiming ownership of a web site he or she was paid to create. The “site” is the “product” that was purchased from the vendor.
What you are confusing are three very different concepts: Licensing versus rights of copy (transferred) versus work-for-hire.
That’s an interesting comment, Paul. We always give the source files to the client. If we can’t hold on to them for maintenance work or future website work via the quality of our work and/or the quality of our relationship with them, then we don’t feel it’s right to impede them from going elsewhere. Getting the intellectual property is always included in our website design fees, not negotiated as a separate fee.
I’m not saying that our philosophy is “right” and yours is “wrong.” It’s just two different ways of looking at running a website design business. (In our business, website design is just one of the services and products we offer, it’s not our sole bread and butter, so maybe that plays a role in our decision-making around this topic.) Plus we’ve had to rescue a lot of our clients who bring us websites but not the source files, and we listen to them when they say “I wish I had known!” Finally, we work almost primarily with solo entrepreneurs and non-profit charities, who often don’t know the copyright laws and/or technical process behind creating a website, and appreciate when we help them to understand what it takes (technically) to put it all together.
Each website designer has to decide what is right for them, just as the clients have to decide what’s right for them. I honor your way of doing business and if it works for you and your clients, vive la difference!
Warmly,
Karyn
Don’t forget copywriting! My agreement states that I own all the rights until I get payment in full. Then I turn over the copy and they own the rights. I also agree that clients who pay for my Diagnostic service own the Report and suggestions; they can go anywhere to implement them.
Clients often don’t realize that they can’t tweak or modify the copy until they’ve paid in full. I’ve had clients send me drafts of revised copy, asking me to comment. I have to explain that they can’t do this.
On the other hand, I cringe when I see how some clients have modified my copy on their websites! It’s legal but they’re losing all the benefits of what they paid for.
Agreed, Cathy, copywriting and ghostwriting are copyright-able.
Are you saying that you don’t allow your clients to brainstorm or tweak the first draft of the copy you give them until they pay in full?
Warmly,
Karyn
Hi! I recently parted ways with my boyfriend of 3 years(we lived together). While we were dating, but before he moved in, I spent 1000’s of hours building his website, completely unpaid: no money, no gifts, barely a thank you. The website words were his, he paid for the domain name, but the unpaid work and the html coding is mine. Don’t I own the work product? Especially since he didn’t pay me to do it? In essence, would it be legal for me to go into his domain account and erase all of my work (the entire content of the website), since I own the work product?
Thanks for any help! 🙂
Hi, Debra,
I’m not a lawyer, so I can’t give legal advice. You may or may not own the coding/content, BUT your ex-boyfriend owns the domain and the hosting account. It would seem to me to be illegal for you to “break in” to his hosting account without his permission to remove your content.
My advice to you is: talk to an intellectual property lawyer to find out your rights. If you decide you want your coding back, let a lawyer handle the communications.
As a coach, I would also ask you: What will you get out of this? Why do you want to do this? Why hold on to this? Would it be healthier for you to let go and move on to bigger and better things? Motivation and intention matters.
Warmly,
Karyn
Thanks so much for your advice. All good points to consider, thanks for taking the time to respond!
🙂