/Culture/ Copyright for web designers
07/07/2006 | Filed under Design > Culture
For the inexperienced, developing sites and software can be a legal minefield. This issue Brian Miller, solicitor and partner in the new media firm Davenport Lyons, explains how to keep control of your copyright
Every lawyer’s favourite adage is ‘never assume’. It’s especially relevant for companies hoping to take part in the development of new sites. Each company may ‘assume’ that it will own the copyright of the final product, even though their contract makes no provision for it.
In the creative world of web design, it’s not uncommon for a client to commission a developer to build a web site, only for the relationship to collapse. If there is no contract (or even where there is and the contract isn’t specific), the client often believes that they will own the copyright of the work.
The Client
The precise nature of the rights that the client will acquire on purchasing a piece of software or a design will largely depend on the circumstances of the individual case. For instance, if it was made clear by the client that they would want to sell the software to third parties, although there was no express clause outlining this in any agreements, it’s more likely that the client will have not only a licence to use the software for the purposes for which it was commissioned, but also the right to licence it to third parties. In most cases, the law states that the client, in the absence of any specific agreement relating to copyright ownership, will generally have a licence for the software based on the following criteria:
- A non-exclusive, personal, irrevocable and royalty-free licence to use the software
- For the life of the copyright (ie, 70 years from the end of the calendar year in which the author (designer or coder) dies, or where the author is a company, from the end of the year in which the software was published)
- No automatic right to sub-licence the software to third parties
- A right to repair, maintain and upgrade the software in accordance with the requirements of the client’s business
It’s very rare for a court to award copyright ownership to a client (ie, not the creator of the work), in the absence of a prior agreement
between the parties. The only time this would arise would be if the client needed, in addition to the right to use the software, the right to exclude the developer from using it and the ability to enforce the copyright against third parties. An example of when this might arise is where the purpose in commissioning the work is for the client to make and sell copies in the marketplace the work was created for, free from competition by the developer or third parties.
The Developer
As mentioned earlier, the developer can re-use the code they created to build the software for the client, provided that all of the client’s confidential information has been removed. Given that, by implication, the developer retains copyright ownership of the software, they’ll be in a position to assign copyright of the software to the client for a further sum. Alternatively, the developer could license the software to a third party to redevelop it for a new client, provided there are no remnants of the client’s confidential information.
As we have demonstrated, it’s never advisable to enter into a contract for development of some software (which would include a web site) without there being something in writing, particularly in relation to copyright. When planning new projects it’s worth getting these matters set down in writing to esure that the rights of each party are clear and adequately protected. In the case of the commissioning party, that will mean that there are no surprises when it comes to claiming ownership, or indeed selling the software or web site to third parties.
Bookmark with:
Comments
JK / 15/03/2007 / 09:39 / http://www.drumcreate.com
OK, so what happens when as a freelance designer, you create the look of a website, and want to show some screengrabs of it on your own promotional site. The client who commissioned the work says yes, but the company who commissioned you as a freelancer to design it says no? And no-one has signed any contracts whatsoever.
Hilary / 30/03/2007 / 12:34 / http://www.incrediblesoftwaresolutions.com
I was recently approached by a designer to do some css work on her new design, her words to me were if you dont work on trust we cannot work together, I thought ok lets try this she wants ONE page done in css, whats the harm?
Well anyone who does css knows there is no such thing as ONE page - I forgot that to my own detriment, fortunately I stopped in time and I was obviously able to use my own code (which Ihad not handed over yet) on other projects.
The rule of thumb is there is NO TRUST in business, no contract NO deal! Trust is earned and as a student using the web designto pay for the studies in JAVA and so forth doing a a day or two's work was a major BITE out of my time for my studies and other projects.
When the designer (as good a designer as she is) said she did not have a contract with the commisioning company my alarm bells went wild and I stopped, she also kept adding to the designs which (had I continued) would have kept adding to the complexity of the work and each different page was well, different, as the third party in this chain I knew without a contract I did not have a leg to stand on and as a disabled student I would not have had the finances to go to court to prove my case - whcih is what happens with or without a contract, but with a good contract is less likely to happen.
As the law says 'caveat emptor' - let the buiyer beware, in this case and in yours, you must protect yourself from ignorent and greedy people as well as those who would take adavntage. If you dont protect yourself , who will?
Baljit Kooner / 29/04/2007 / 23:52
Regarding the information given above, what is the relevent authority i.e section in statute for this
Mathew Browne / 06/05/2007 / 22:12 / http://www.mbwebdesign.co.uk
In response to Hilary: You're so right. I've learnt the hard way that working without a contract is asking for trouble. The same goes for any client who won't pay a substantial proportion of the quote upfront (~30-50%).
By generating a contract and a complete specification of work before commencing work you can be assured that if the relationship with the client dissolves, you at least have some money for your troubles. Similarly, if the client moves the goalposts halfway through the job, you can refer to your original specification of work and quote them for the extra work they're asking for.
I have no doubt that I've scared away some potential clients with this, but I don't consider it much of a sacrifice - if they won't sign a contract, pay a decent amount before starting the job, or agree upon a specification of work upfront, are they really a client worth bothering with?
Pavan / 23/05/2007 / 05:46
I am actually looking to hire a developer for some adobe flash/database work. I also was wondering what exactly does my future developer want from the job to ensure satisfaction and trust with me. I appreciate your feed back and I hope that I can build a positive relationship with my future developer based on what you told me. Thank you for the help.
Tanvir / 06/04/2008 / 10:17 / http://www.lyonssolutions.co.uk
I totally agree with Mathew. You have to put your foot down on things like this. Make sure that you sign a contract and also take some up-front payment for the work.
Think of McDonalds or even your local take way, they take payment first and then give you the food.
It's better to loose a dodgy client than wasting your time.
Daniel Foster / 24/04/2008 / 13:48 / http://www.pcfastlane.com/
I will be passing this on to a few people I know. There are a look of good webmasters out there who know very little about copyright. It only takes a few minutes to read up on, and understanding copyright is key to making it on the web.
Rahim Haji / 10/08/2008 / 23:39 / http://www.webtrendz.co.uk
This is a nice article for those into fiction. I am a web designer and stumbled upon this article and had to chuckle. All the arguments presented by Brian Miller are strong and acceptable, but as all business people and layers know without the statute and precedent in law you have nothing to fight with. So let me ask you this sir, where is the statute or case law examples behind the points made above?
Ittikorn S. / 04/02/2010 / 09:40 / http://www.pspsx.com
I'm WordPress themes developer and seems to having a problem like this case. This such a boring things...
Andrew / 01/04/2010 / 13:56 / http://www.squidgemedia.com
This is a great starting point article for web copyright. There's a lot more to it but definitely worth digesting. Thanks!
Stephen / 24/05/2010 / 20:02
Well, its good to know that if there's no contract and no notice of my client owning the design then I can stick my copyright info at the bottom, as well as keep the design if and when my client leaves.
Myows / 05/08/2010 / 22:37 / http://myows.com
Neat article about copyright. The more we educate creatives about their rights, the better. It's a shame that so many design professionals have little clue about what owning copyright means to them.
We also wrote a 3 part series about copyright basics for designers, available here: http://myows.com/blog/copyright-basics-for-graphic-designers-part-1/ - it's written by an IP lawyer and I believe is worth sharing.
