Commissioning a website without really owning it?

[neilorourke]

I have approached a web development company to rebuild my website.

My initial impression was that they would build this then hand it over to me. I understand though that they will retain the intellectual property rights and provide me with a life time license. This means that the website will have to remain on their server even if I decided to sell it.

Is this now the standard approach to developing web applications or is this an unusual arrangement?

Thanks

Neil

[webmaster@bankstonmotorho]

RUN FORREST RUN!!!
While it sounds good for the designer it doesn't sound good for you. I'd go find someone else. There are plenty of designers that will do the project and turn everything over to you.

[corporateface]

Need more details about the application.

I have CMS apps that run on some of my clients sites, and they pay a monthly fee to use it. If they cancel the lease of the application I remove the app from their site.

Do you want to pay $15k+++ for the application or do you want to pay $50/mon ...

I don't know if that is the situation, but this is an example of how something like that can work.

[DrTandem1]

Hosting and designing are two separate issues. While the two can be combined, there is really no good reason (for you) to do that and a lot of good reasons not to do that. You, the web site owner, should be in complete control of the three main parts of your web site:

1. The domain name
2. Hosting
3. Designing

To have the three done by different entities allows you, the owner, to be in control. Domain names are easily transferred from one registrar to another. Hosting can be done by one or more different companies. Designing the site can be done by one or more parties. For instance, if you allow the host to also control the domain name, it can cloud the ownership of the domain name.

Keep it all simple by keeping it all under your control.

[corporateface]

Agreed ... Always register your own domain names.

As a customer, you should shop around for hosting.
As a designer, ... depending on the details of what you are having done to your website ... I would not necessarily call this a red flag. Especially if you are trying to get something inexpensively.

[schachin]

Well this post has two issues to it
assuming we are talking about site creation not hosting

1) is this common practice.. ??
while not common it is the legal default as I understand it (unless it has changed recently) is that the person who creates the design or code owns it and you are paying for their service.. IE unless you have it in the contract that you own it technically the company who created it does.. this means if you walk they can keep your site..

NOW this brings me to q2
2) what does this mean ?
well it could mean one of two things and only you know these people so for you to judge .. they could be badly wording that you do have the right to your code - OR - and because they want you to host on their servers .. this seems more likely.. that they have some small line item that allows for them to cancel that lifetime license.. or allows them to charge you for it or.. or .. or .. most likely there is a caveat -

when I do design I sign it over the customer in the contract.. as an act of good faith.. if they won't do that then I would probably decline using them...

just my 2 cents ;)

[mykiesee]

I register, design, and host for almost all of my clients. I haven't had a problem yet. If someone wants to transfer their site to another host I gladly comply. It is easier for me to register the domain so I don't have to go through the hassles of transferring. They are listed as owner of the domain with me being the technical contact. No ownership issues arise. I just find that it's easier for me and the client if I can provide all three services. Of course, I'm a good guy and wouldn't hold anyone's site hostage.

[mawells]

Again, it depends on what you're getting. Proprietary code written so that you can manage the site yourself is the biggest reason why a design firm might use this type of approach. But it will tie you to them and to whomever buys them if they decide to sell their business (I would ask what assurances you have that this won't happen).

Otherwise, find a designer who can do it all for you but keep you as the owner of the domain and the website. We frequently register domain names for clients (in their company name), share the log in information with them whenever asked, host their site and give them FTP access if they request it, as well as design and maintain the site.

Shop around. There are some good deals out there and you don't have to tie yourself to one company.

Maintaining creative rights is an old ad agency thing - even photographers used to maintain rights to photos taken for clients. Today, not too many people will sit still for that kind of control. When I was an advertising manager I always insisted that we own the photography and the photography was licensed to use them.

[MRice]

As a designer, I can understand the standpoint. But, the way our contracts are worded is that all of the IP is owned by us on the grounds that it is our code. We wrote it, we have full rights to it (to use it again, to sell it, etc) while the client has no actual rights to resell our software or design. They can, however, sell off their domain, including our software/design, and the owner is responsible for the software agreement (always included in the software/design files somewhere).

[cimmeronstudios]

Our standpoint is that if we are compensated for a design, the person who paid us owns it, unless we otherwise negotiate it.

Like said above, run the other way. This is not a good deal for you - only for the company in question.

[bjbtexas]

I have approached a web development company to rebuild my website.

My initial impression was that they would build this then hand it over to me. I understand though that they will retain the intellectual property rights and provide me with a life time license. This means that the website will have to remain on their server even if I decided to sell it.

Is this now the standard approach to developing web applications or is this an unusual arrangement?

Thanks

Neil

No, it's not standard. I wouldn't recommend this as a buyer unless the company offers something very unique.

[Dinghus]

I agree with the RUN! statement.

The STANDARD is that you own the rights to what was produced and paid for. Just like you own your own house after you pay for the contractor to build it. He doesn't give you a lifetime license to live in your house.

HOWEVER, this also means that the designer can use the materials in a portfolio unless you specify otherwise.

What I believe they are trying to do is prevent YOU from turning around and using the graphics etc that they created for purposes other than what was the original intent ie the website. So you will not be able to sell a graphic for instance to another person for use on another site.

The other angle they are going at is that you can not sell the website without going through them first. I'm betting that the lifetime license is null and void in this case and whoever buys the site would have to pay a HUGE fee to get the "rights" to it. Or you pay a huge penalty.

IF they are insisting it be hosted on THEIR server and they are providing the domain name, this is a clear warning that they may be up to no good. What is happening out here in the cold cruel world is exactly what you are saying. BUT if your site is a smash hit, the company comes in and takes it away from you. After all, it is THEIRS. All of it. You pay them to build it. Then you do all the work of promoting it and getting it successful and suddenly it belongs to them and you have no legal recourse.

DO NOT DO THIS.

Go to Godaddy.com and purchase your domain names. Host it there too if you want. THEN get a design team that will provide you with the files. Don't let them have access to your account either. They could change your password and demand money for giving it back to you.

Let them send you the files after demoing them on their server. Then you upload them. Unless you can give them seperate FTP account that is.

[rascalpants]

Wether the client knows it or not, all of the creative assets, text content, and programming methodologies is owned by the development company.

I have debated this issue for a decade now, and each time it comes up, I give the Wedding Photographer analogy...

When you hire a wedding photographer, you are paying for their services and you pay extra for the prints. The copyright and intellectual property is theirs and this is actually how they make a profit. The reprints from the negatives are the property of the photographer, and anyone who wants duplicates of the photos needs to go through them.

The same thing applies to web sites and other designed property... Unless the web designer signs a contract that says the sources files and code will be turned over to the client along with a transfer of copyright ownership, then the work belongs to the designer.

The only way the work is the property of the client is if the job was a "Work for hire"... such as being a full-time employee or having a designer do a commissioned piece... and their should still be a contract signed in both instances.

rp

[Serrbiz]

We recommend that our clients use Joomla, which is an open source CMS that can do pretty much anything from ecommerce to real estate to blogs, etc. This means the client OWNS the software, design, images, etc. Or course, we make it SEO and SMO from the start so there is no retro-fitting later.

If you desire to leave for any reason, we pack the site up and send it to you.

We prefer this model as it's based on performance of Serr.biz and client satisfaction not handcuffs.

As a business owner, you DO NOT want to be locked into any one developer or design. What if someone dies, or just raises their rates 100%? Then what? You have to start over?

Michael Zittel
Serr.biz LLC
80.556.7449

[twopooches]

I have similar terms for my clients. However each service is independant of the other. Clients are never obligated to maintain hosting or maintenace with my company. I do require that I and respective companies retain rights to the coding & original design used for the site.
I have run into situations where my design etc. has been credited by another designer. This designer then acquires new clients as a result of my work. If a client wishes another company/person to maintain the site they are required to state "Site maintained by.." rather than stating developed by...
It is a lot of work to create websites according to a clients wishes. I will never feel it is right for someone else to take credit. In order to protect my work I have to require agreement to my terms.

...the client is automatically assigned rights to use as a web site the design, graphics, and text contained in the finished assembled web site. Rights to source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners.

This works both ways... if I take over someone elses site I require permissions and will never state I developed the site.

Due to the number of unethical web developers many companies are forced to create terms that may seem unreasonable.

[neilorourke]

Thanks for the feedback. Basically I have been running www.galleries-online.co.uk, which I built from scratch using Colfusion, for some years now. I'm not particularily advanced and do not have the time to learn the skills to take the website onto the next level.

My friend's company have been building coldfusion web applications for 10 years and have developed a comprehensive application framework over those years.

The idea will be that they redesign and redevelop the whole website using this application framework (I think that's the right term). I will pay an initial fee for the development and design and then a small subscription for hosting and maintainence.

The advantages are that the application can be built quickly using tried and tested components which are regularily updated in line with the latest upgrades. There is also the advantage of handing all aspects of the develoment and maintainence over to another company leaving me with the space to focus on marketing and business development.

The disadvantage of course is that I am tied to them. I'm not planning to sell the website in the near future but I would like to know whether the value of the website would be reduced significantly if the buyer is tied to the same arrangements.

cheers

Neil

[Mamoon Rashid]

forget about the discussion...just start giving me work and you dont even have to ask this question again on the forum :) muhahaha

now guys..dont start flaming me for this reply :P

[Clarrie]

I have approached a web development company to rebuild my website.

My initial impression was that they would build this then hand it over to me. I understand though that they will retain the intellectual property rights and provide me with a life time license. This means that the website will have to remain on their server even if I decided to sell it.

Is this now the standard approach to developing web applications or is this an unusual arrangement?

Thanks

Neil

No, No, No, don't do that if you can possibly avoid it - they've got you locked in.

Unless they have some special system or service you absolutely need, you shouldn't cede that sort of control to them, as they've got you over a barrel.

I recently did a site rebuild for someone locked into that sort of arrangement: CMS licence, hosting and "support" was costing £1500/year (that's roughly $3000 to you Americans) for a fairly standard site. Support was negligible - every time they asked for help it was always "oh no, that's not covered, and that'll be a day at £500 / $1000..."

Keep the ownership of your site, and make sure you use a system that is developer independent (in case he goes bust, or you fall out), and that you can move to a new host if you wish.

Make sure that any contract you sign with a developer ultimately assigns all copyright and IP to you - we have a retention clause that states we own everything until paid in full, after that copyright and all IP becomes the client's.

The fact that you're on this forum suggests that you aren't comfortable with what's been offered - so I'd follow your instinct, because its a recipe for much future unhappiness.

[MarcGrobman]

Yes, I agree -- this is not how I work and in most cases I would suggest that you do not agree to this type of contract. But there are some legit reasons to do it this way.

Sounds like an inexpensive site made from templates (or customized templates) run by a proprietary back end. With something like this you could get a lot of good features quickly and relatively cheaply. And it would be pretty impossible for them to just give you a copy of it if you want to go somewhere else. Another reason they may be doing it this way is that they are charging next to nothing for the design and they recoup it in hosting.

The downside to this sort of site is that, however little money you sink into it, you've lost it if you are unhappy. And even though you may have access to a lot of features, because they are not custom made for you, they may not work exactly how you want them to.

I'd only consider it if you really trust this company and they are giving a great product that serves all your needs for a good price. It could be a great way to get a site up quickly when you can't afford something custom.

[rascalpants]

I agree with the RUN! statement.

The STANDARD is that you own the rights to what was produced and paid for. Just like you own your own house after you pay for the contractor to build it. He doesn't give you a lifetime license to live in your house.

HOWEVER, this also means that the designer can use the materials in a portfolio unless you specify otherwise.

What I believe they are trying to do is prevent YOU from turning around and using the graphics etc that they created for purposes other than what was the original intent ie the website. So you will not be able to sell a graphic for instance to another person for use on another site.

The other angle they are going at is that you can not sell the website without going through them first. I'm betting that the lifetime license is null and void in this case and whoever buys the site would have to pay a HUGE fee to get the "rights" to it. Or you pay a huge penalty.

IF they are insisting it be hosted on THEIR server and they are providing the domain name, this is a clear warning that they may be up to no good. What is happening out here in the cold cruel world is exactly what you are saying. BUT if your site is a smash hit, the company comes in and takes it away from you. After all, it is THEIRS. All of it. You pay them to build it. Then you do all the work of promoting it and getting it successful and suddenly it belongs to them and you have no legal recourse.

DO NOT DO THIS.

Go to Godaddy.com and purchase your domain names. Host it there too if you want. THEN get a design team that will provide you with the files. Don't let them have access to your account either. They could change your password and demand money for giving it back to you.

Let them send you the files after demoing them on their server. Then you upload them. Unless you can give them seperate FTP account that is.




Dinghus is actually wrong about a few things... The STANDARD is that a contract is signed stating what is expected as the deliverable. For smaller freelance jobs that are less than $10K, the standard is for the designer to retain full copyright of all creative assets produced.

The designer that freely turns over the ownership and source files of their work is either uneducated on the laws of copyright, or just doesn't care about receiving the residuals that they are due if the "work" is duplicated. Sometimes if the job is small, I allow the client to purchase the source code for a very small fee between $250 - $500. But then again, I still have the copyright.


My advice, if you are not comfortable with the contract you are signing, is to draw up your own(ie find one on the internet) and have them sign it. The contract should state that the job is a "work for hire" and be very specific about the ownership of the intellectual property and the copyright.

A well written contract that covers all ownership issues is the key to a great working relationship and keeps everyone honest.

rp

[neilorourke]

I know the guy pretty well (he actually taught me coldfusion for peanuts many years ago)

The support and hosting is only £400 per year which is less than the deal I'm getting at the moment with my hosting company.

He has suggested he can do it privatly using the same modules (as he is the one who developed them) In a way that can be handed over to me. This would mean waiting about 6 months for him to build it and would mean getting limited support.

[EditFast]

the person who creates the design or code owns it and you are paying for their service.
In my experience this is not the norm. This would have to be specified by the designer and agreed to in writing by both parties prior to commencing work. Generally speaking, once the code or design is completed and paid for, you own it outright. Until it is paid for, the designer owns it.

I would not go into an arrangement such as the original poster is contemplating simply because I am a control freak and want complete control of all aspects of my sites. This can be overwhelming for the newcomer and for those who do not want to spend 10 hours a day in front of the computer but in the end it is rewarding, safe, and there is no one to blame but yourself.

[Clarrie]

The disadvantage of course is that I am tied to them. I'm not planning to sell the website in the near future but I would like to know whether the value of the website would be reduced significantly if the buyer is tied to the same arrangements.


Should affect the resale value / and or terms of sale - however good your relationship with your friend, any potential buyer can't take the continuation of the relationship for granted, and is likely to either want to discount the price or seek to impose an ongoing warranty on you personally with regard to the continuance of the support relationship. Not a good situation at all, much better to have clear title, and have the freedom to go elsewhere if need be.

[blitzen]

I have approached a web development company to rebuild my website.


A web development company? Why didn't you check with more?

If baffles me how people ask for what's common after doing such minuscule research.

We always give the site rights, from domain name to design, to the client. If they want to commission another developer, then we didn't deserve it. I haven't lost anyone yet.

[joomx]

For us here (Austria / Europe) this is usual and made by the laws here, that the person who did the job owns the intellectual rights if NOT otherwise (due a contract between the parties) stated.

In worst case, if you are an employee and work as a designer and they kick you out of the company, you could also claim all you have done the whole time.

Guess the rest of the world is a bit other?

And about the second posting (from the start of this discussion): there are always people around which are doing the job for nothing or not much.
Most of my clients were fallen in this trap before.

[corporateface]

Site design (I believe) belongs to the customer.
Domain Name belongs to the customer.
Hosting (up to the customer)

Proprietary systems etc should remain the property of the leasing/development company/individual unless the customer wants to pay a lot of money as opposed to a lease.

Look at automobile leasing. You can pay $35k for a truck, or lease it for $250/mon. At the end of the lease you give the truck back.

[southplatte]

Let's evaluate a few certain items here, and I wish to use the wedding photography business as a model, as it was previously used.

First and foremost, if you provide textual content, graphical content, video content or any other aspect for the web site, you obviously already own it (or should) and are thereby granting the designing firm a license to use it in conjunction with the services they are providing. A wedding photographer does not take content, then change the presentation, and take ownership as is often the case in a web development situation.

On the flip side, if you gave them a list of services you perform, or products you sell, and gave them the freedom to create the content (text, sell copy, and they take the product/service photos), then they very well do own the content at that point.

If you allow them to register your name as their own, rather than putting you as the domain registrant, then yes, they will own that as well. It is highly important that you "own" the domain name, for if you wish to ever move to another designer/hoster you will be unable to take your domain with you - which may be a very bad sitaution for your business.

Secondly, if they are programming a database to house your data, code to display that data, code to control user login, code to allow user interaction, all of the logic and code will be their property to use how they see fit. So they may make your site, and take the database design (not I did not say the actual data), the programming logic/code and re-use it on any number of other sites at will. You will never have any control over this, at least not any more control that you have over owning the code to Windows. So, all logic code is their property, not yours.

That is where the wedding photography example comes back into play, the photos are theirs because they created them using their method. In this case, the logic is the developers as it is there method, the data (or actual viewable content) of the web site is only theirs if you commissioned them to create it for you.

There is not an argument merely over the web site ownership, but arguments over domain owner ship, content ownership and logic ownership at this point.

If you allow them to register your domain name, you may end up not being the rightful owner to that name, so don't allow that.

If you allow them to generate the content rather than you providing it to them, they own it, thus owning the true "website" as the website is the content. So don't allow that, provide them with content that you personally generate and you will retain the rights to that content and they will be unable to use it on other sites, or an this site should you choose to host elsewhere.

If they have developed any logic code to display your data or their created data, that logic code is, and always will be their property.

[neilorourke]

I think southplatte's way of breaking this down is very useful. Essentially the domain is already mine and has been for a number of years now. In terms of content the vast majority of this is and will continue to be user generated both by visitors and the member artists. I assume therefore that this content would also continue to belong to me (having said that I wonder if some unscruplous developers could argue that content generated through their CMS is theirs!!).

There does seem to be quite a few compainies out there which offer similar arrangements. Many offer a chioce between the two options.

It would be useful to know if anyone has actually entered into such an arrangement and could give feedback on their experience. Especially if they have tried to either sell or move the website.

[iany]

I agree that the deal you are being offered sucks, however, there are some odd views here. I do not believ e that we can compare web design/build/hosting with photography where the IP rightly belongs with the photographer. Perhaps the graphic design of a website has a creative element and, therefore merits IP rights, but html coding? I don't think so. The mantra I subscribe to, is "by all means copy my code, but not my content". Let's face it with so much available to foc, it seems bizarre to claim total ownership.

As for access to client's web sites, I always insist on having ftp access as I like to make sure that the site works properly before signing off. This is particularly important when installing CMS or e-commerce systems where permissions need to be set.

I never have any problem with this- it is after all a matter of trust, and a proper business-like approach. I guess that having being involved at board level for some twenty years and the resultant grey hairs may help in this matter. :-)

[pdstein]

We recommend that our clients use Joomla, which is an open source CMS that can do pretty much anything from ecommerce to real estate to blogs, etc. This means the client OWNS the software, design, images, etc. Or course, we make it SEO and SMO from the start so there is no retro-fitting later.

Actually, this not true. If you use an open source application, the client does not "own" the application. Yes, the client can use it for at no cost as long as he/she wants and he/she can take it to another host, but he/she still has to abide by the terms of the open source license.

If the client truly "owned" the open source code, then the client could sell it and file trademark violation lawsuits against all other users.

[carlos_p]

I agree with the RUN! statement.

The STANDARD is that you own the rights to what was produced and paid for. Just like you own your own house after you pay for the contractor to build it. He doesn't give you a lifetime license to live in your house.


The above comparison is not correct.
If you want an analogy, here's one:
-If you get an ARCHITECT to design your house, you get the house and NOT the right to duplicate the house plans and build a similar "copy" of the house.

Just try to imagine yourself copying a building created by, say Frank Gehry.
You think you wouldn't get sued?

Here's another example:
-You buy a painting;
-You decide the bananas in the painting should be blue, so you paint'em over;
... the author has a right to sue you, did you know that?

Don't mistake IP with physical property.
Straight back to topic:

No, that's not the standard way of doing things, because those guys are mixing two unrelated things. Whatever may be your agreement on the design issue, it has nothing to do with the hosting. You could even have your website not published on the web but on an intranet instead, for instance. The people who design it don't have a say in the matter.

[Haze]

The support and hosting is only £400 per year which is less than the deal I'm getting at the moment with my hosting company.


1) Why pay 400 when you can get a perfect hosting and support for £39.99 with storminternet.co.uk. We have at least 15 clients over there. Perfect support and service. And several other hosting's in UK and Scandinavia offer the same.
(Its internet you know, you don't have to host it next door, in US.)

2) Is really a "Designer"? Most of them out there probably have no Graphic Design education at all, maybe some skills in script. That's far from the same thing.

3) Why pay these ridicules prices we read about almost daily in this forum, how can one page cost 100+$?? Don't these guys use css and databases 2007? Or do the charge by 10 minutes?

Naah.. I'm sceptical..
Ciao Haze

[Nick Spence]

Thought I'd jump in on this one since there seems to be some confusion about copyright law. Current law in the U.S. and amongst signers of the Berne convention essentially states that the creator owns the copyright of creative works and their derivatives. If one is an employee, then the employer is legally the creator. If one does work for hire, then they are essentially becoming an employee in the eyes of copyright law and whoever hired them owns the copyright.

So, if you hire any independent entity to build a site, they own both the design and code UNLESS their is a contract to the contrary.

Here are a couple of resources for the layman:

10 Big Myths about copyright explained
http://www.templetons.com/brad/copymyths.html

ARTICLES FOR WEB SITE DESIGNERS AND SITE OWNERS
http://www.ivanhoffman.com/web.html

Now, whether any particular designer wishes to sign over the copyright of the site to the client, and under what terms, is up to them. For our company, we will do whatever is in our best interest :-) This is a meta statement that we put on our client sites:

Web design and coding, copyright 2007 The Marketing Department. All rights reserved. Content copyright 2007 (name of client)

If we use imagery (such as photos) that is owned by another and licensed by us or the client for use on the site, we will mention it, but not necessarily name every copyright holder unless such was required by the license agreement.

If we wrote the copy, we would of course, include that in our copyright notice.

Here's another notice we used on a site that we own and have particular concern about violations:

Copyright 2006-2007, The Spence Companies, Inc. All rights reserved. No part of this site, neither artwork nor code, may be reproduced or hot-linked without permission. Violators will be prosecuted.

~Nick

[jomariet]

I do a lot of cold fusion websites and prefer to work on my own server. When writing a proposal for a new client I make it clear what technology is being used, what they can take with them if they choose another hosting/development path and what the benefits/costs are.

Whenever you are developing using a tool that requires special server software, you are limiting your client to hosting companies that support that tool. Cold Fusion and ASP are pretty obvious examples of that.

Your database choices can limit portability as well. SQL servers are not equal, Access databases are seriously limiting and MySql is not universal whatever they tell you.

A website owner needs to balance what they want their website to do, how much they want to pay for it and how much they can afford in maintenance and updates. License options aren't standard but they can be a really good choice depending on your unique business situation. As technologies evolve, there are going to be more options and less standardization.

In the long run, get quotes from developers that will tell you the initial and long term cost of your site before making up your mind and writing the check.

~JM~

[corporateface]

I think southplatte's way of breaking this down is very useful. Essentially the domain is already mine and has been for a number of years now. In terms of content the vast majority of this is and will continue to be user generated both by visitors and the member artists. I assume therefore that this content would also continue to belong to me (having said that I wonder if some unscruplous developers could argue that content generated through their CMS is theirs!!).

There does seem to be quite a few compainies out there which offer similar arrangements. Many offer a chioce between the two options.

It would be useful to know if anyone has actually entered into such an arrangement and could give feedback on their experience. Especially if they have tried to either sell or move the website.

It sounds like you are asking a developer to provide you with a system that is dynamic. I have all of the components for a website like the one you are talking about. I have a member registration system with online cc payment, profile pages (updatable by the user), photo galleries, HTML editors, etc...

Some of those systems I would sell with the site, others I would lease. etc... It doesn't sound like there is anything wrong here. Check with his/her/their other clients for references...

[schachin]

[quote=schachin]the person who creates the design or code owns it and you are paying for their service.

In my experience this is not the norm. This would have to be specified by the designer and agreed to in writing by both parties prior to commencing work. Generally speaking, once the code or design is completed and paid for, you own it outright. Until it is paid for, the designer owns it.


Actually - i respectfully disagree this statement.. as I said I was not saying it is common practice, but unless I sign over rights to the person I own it... even once they pay for it because they are paying for my service not my product..

I have worked at companies where the person came to us to find a way to get their code back because the courts told them they did not own it.. copyright law maybe I am not sure.. or maybe state by state.. but the coder and company in the states I have worked in say the designer developer owns it unless they state otherwise..

NOW is this good business no.. of course not.. but does it mean people don't use it to their advantage.. of course not

[jrb@w3f.com]

I register, design, and host for almost all of my clients. I haven't had a problem yet. If someone wants to transfer their site to another host I gladly comply. It is easier for me to register the domain so I don't have to go through the hassles of transferring. They are listed as owner of the domain with me being the technical contact. No ownership issues arise. I just find that it's easier for me and the client if I can provide all three services. Of course, I'm a good guy and wouldn't hold anyone's site hostage.

Kudos.

Myk is honest, many are not.

Issue #1:

I have spent the last 10 days in a DNS change,
turned to domain registrar transfer hell
from goDaddy.com

My client is very upset because his domain was to
go live last week. He has also had to pay me to
help resolve the matter. Yeah, I charge $25 per
year for domain registrations, and DNS management.
His savings using godaddy's $10 has really
been a bargan.... uh, huh, sure .....

You own the domain, like Myk says, or you go elsewhere INSTANTLY!

Issue #2.

If you pay for the web design, you own it. Period.

If you chose a host where the design involves their
propriatary code to operate, then you are kinda stuck
with them as host. This is not necessarily a bad
thing, (if you need it), as many offer a lot of
extras that would be cost prohibitive to develop
yourself. They cannot give you their back-end
programs if you move your pages. Not reasonable.

$25-$50 per month for that? Yes, a reasonable price.
You have to decide if it is cost-effective in what
you are doing with the site.

Just go with a company that knows it's place.

The copyright belongs to the one paying for the
creation, not the company that did it, nor the host
of the creation. Require it in your contract! That
also goes for the back end code. You can't own that unless you pay for it.

Good questions.

[MarcGrobman]

[quote=Dinghus]

The designer that freely turns over the ownership and source files of their work is either uneducated on the laws of copyright, or just doesn't care about receiving the residuals that they are due if the "work" is duplicated. Sometimes if the job is small, I allow the client to purchase the source code for a very small fee between $250 - $500. But then again, I still have the copyright.



I absolutely disagree. Work for hire means that the client gets the work that you do for them. Yes, you should work it all out in the contract and if it is a cheapo job you can refuse to turn over the work. But no graphic design client (at least not the kind I like to work with) should allow the designer to keep all the rights to the work and perhaps use the same design for a different client. That is really a different kind of service. Templates. Not my thing, maybe yours.

[jrb@w3f.com]

Wether the client knows it or not, all of the creative assets, text content, and programming methodologies is owned by the development company.

I have debated this issue for a decade now, and each time it comes up, I give the Wedding Photographer analogy...

When you hire a wedding photographer, you are paying for their services and you pay extra for the prints. The copyright and intellectual property is theirs and this is actually how they make a profit. The reprints from the negatives are the property of the photographer, and anyone who wants duplicates of the photos needs to go through them.

The same thing applies to web sites and other designed property... Unless the web designer signs a contract that says the sources files and code will be turned over to the client along with a transfer of copyright ownership, then the work belongs to the designer.

The only way the work is the property of the client is if the job was a "Work for hire"... such as being a full-time employee or having a designer do a commissioned piece... and their should still be a contract signed in both instances.

rp

What tree did you fall out of?

If I pay you to take my photo, with your equipment,
do you own the picture? I think not. If I want to
pay you extra for prints, or copies, then thats a
different thing, I am, again, paying for a service.
Same thing here when it comes to a web site.

I pay you to draw a picture, take a photo, build a
web site, it is mine. You got paid for your work.
You don't own my photo, painting nor web site.

If you are getting people to fall for your methods,
you are a thief (in my HUMBLE opinion). You are
claiming rights you don't have. (Unless you duped
some sucker into signing your contract.)

Read the posts around here......

Also tell me the name of your business and web site
so I can warn my friends.

[jrb@w3f.com]

[quote=schachin]the person who creates the design or code owns it and you are paying for their service.

In my experience this is not the norm. This would have to be specified by the designer and agreed to in writing by both parties prior to commencing work. Generally speaking, once the code or design is completed and paid for, you own it outright. Until it is paid for, the designer owns it.


Actually - i respectfully disagree this statement.. as I said I was not saying it is common practice, but unless I sign over rights to the person I own it... even once they pay for it because they are paying for my service not my product..

I have worked at companies where the person came to us to find a way to get their code back because the courts told them they did not own it.. copyright law maybe I am not sure.. or maybe state by state.. but the coder and company in the states I have worked in say the designer developer owns it unless they state otherwise..

NOW is this good business no.. of course not.. but does it mean people don't use it to their advantage.. of course not

Where is 'the product' when you write code for
someone? You were already paid for the service of
writing it. Web page design is a service, it is not
a product, so your position doesn't hold water.

I pay you to build me a web page and then claim any
ownership for what I paid you to build for me, then
you will see a serious lawsuit.

[Mumtaz]

I have approached a web development company to rebuild my website.

My initial impression was that they would build this then hand it over to me. I understand though that they will retain the intellectual property rights and provide me with a life time license. This means that the website will have to remain on their server even if I decided to sell it.

Is this now the standard approach to developing web applications or is this an unusual arrangement?

Thanks

Neil

Normally, you pay for the registration of domain name and its renewal from year to year. You are the owner of the domain name if it is registered in your name. Normally, it should be that way. You also pay for hosting from year to year. However, you dont own the servers. Website itself, if paid for in full, is your intellectual property. Normally, you pay for website designing and development only once and thereafter if you make changes.

For all practical purposes, you must own the domain and website. Business is business and it should be taken that way.

[jeffposaka]

If a client pays us to build a site, isn't it their site? Don't they own it? If I am paid to build a swimming pool, isn't it the customer's swimming pool? If I am paid to build a log cabin for a client, isn't it their log cabin after I am done? Do I retain ownership of the log cabin because I used my unique technology and unique log cabin designs?

I will keep my work in my portfolio and put a link in the footer of the client's site as my signature on the project but the site belongs to the client who paid for it.

[Peter (IMC)]

This means that the website will have to remain on their server even if I decided to sell it.


As far as I understand intellectual property rights, that is not correct. They can not obly you to stay on their servers. I think it simply means you can not use the intellectual property for anything else than what they agree to.

If you´re talking about software and you´re actually renting their service rather than buying a product they have developed then they have the right to make you stay on their servers, but that would mean you'd pay a monthly fee or something.

Even though this forum is about websites, this question may be better asked and answered in a lawyer forum,... :)

[Peter (IMC)]

Do I retain ownership of the log cabin because I used my unique technology and unique log cabin designs? I think you can own the design so the buyer is not allowed to sell the design to another log cabin builder without your permission. That means the cabin is 100% property of the buyer and you´re not allowed to tell him what to do with it, but he can't have an exact copy built somewhere else without your permission.

Any lawyers out there that can shoot this down or confirm? :)

[jrb@w3f.com]

Do I retain ownership of the log cabin because I used my unique technology and unique log cabin designs? I think you can own the design so the buyer is not allowed to sell the design to another log cabin builder without your permission. That means the cabin is 100% property of the buyer and you´re not allowed to tell him what to do with it, but he can't have an exact copy built somewhere else without your permission.

Any lawyers out there that can shoot this down or confirm? :)

If I pay you to design a page for me, and you deliver, then it is mine to do whatever the hell I want to do with it. I can sell a million copies if I want, because I paid for it. Just like I can sell the cabin. I can also sell as many copies of the cabin I want as long as I use blueprints that I paid to have drawn up.

The web designer does not have any right to put his company name on my pages either, unless I allow it and get a discount on the cost. Web designers are builders. We pay them to build. They are not selling a copyrighted product.

If I pay you to take my picture, and you deliver a picture, portrate, whatever, I can make as many copies of that picture, give it away, sell it or burn it. It is mine to do what ever I want, just like my web site. You performed a service, using your equipment to create what I hired you to create. But then it is 100% mine, and you have no rights to it in any way without my permission. Done deal.

You want to retain any rights, copyrights, whatever, you better tell me up front, and then I will go somewhere else with my business and so will all my friends.

Unfortunately, too many web site buyers have no clue, to unscrupulous web designers try and have their cake and eat it too. Sad, but then the buyers don't know.
They assume the seller knows, and trusts him to do the right thing. Too bad so many don't.

[Peter (IMC)]

you better tell me up front
I guess that´s where the answer to the question can be found.

[Orion]

North American copyright laws read basically along the lines that if you pay someone to design build create something for you YOU own it (as long as you pay them). So eg. hire a programmer they create software you own it NOT the creator as you hired them to do it FOR YOU.

Now if they [designer] have an existing piece of work (see stock photos, templates, custom design) that they have created on their own time, then they have the copyright of that and can lease it to you, sell you the sole rights to the work etc.

When it comes to code no one owns HTML code (been defeated many times).

Developers may have software installed on their servers (see mentions of CMS systems) which are being regularly updated etc. Which they may lease the use of to you to manage your site.

When shopping for a monthly payment option on a CMS always make sure that you can export the pages and that you own the design, so you can always export the site set it up with YOUR domain name (the one that you bought, that's in your name) on another host somewhere.

Basically if there's ongoing updates, software upgrades, maintenance etc. then yes there could be monthly fees.

If you're buying something that's existing your purchase it to purchase the rights (which may be limited or in totality), If you commission a work to be done for you to your specifications YOU own it.

Hope that helps!

[Orion]

If I pay you to take my picture, and you deliver a picture, portrate, whatever, I can make as many copies of that picture, give it away, sell it or burn it. It is mine to do what ever I want, just like my web site. You performed a service, using your equipment to create what I hired you to create. But then it is 100% mine, and you have no rights to it in any way without my permission. Done deal.
Not true, go look on the back of your wedding photos or your school photos.. Photography, you pay a sitting fee, then you order the photos and pay per images. You do NOT own the rights to those images and cannot legally copy or duplicate them in anyway. (In NA anyway.. not sure on the rest of the world.. oh UK is pretty much the same).

[deepsand]

Work done for you, at your request, by another, is "work for hire." The person doing the work acts as your agent, and has no claim to the results over and beyond those which you voluntarily assign to him.

Do not use any party who insists on maintaining control of and/or ownership rights to your either your domain name, your site's contents, or its hosting.

[corporateface]

If your website will be inoperable if you leave your designer or host then you shouldn't do business with them.

I only do business with people that I have relationship with or via STRONG referrals. Your website is one of the most important vehicles for your business growth, but it is almost always in the back of the mind - gets the least amount of the budget - is a knee jerk reaction to something. Take time to do your research, get referrals, explore the long term, READ the contracts, etc...

I think that the most important thing in dealing with a contractor of any kind is taking the time to build a relationship that goes deeper than a check or credit card. At least a surface friendship.

[ireneherz]

I have a clause in all my contracts that gives the client ownership of all the "work", i.e., graphics, text, programs, as soon as they make their final payment. IMHO you'd be foolish to accept anything else.

On the other hand, the contract protects me too, because I had one person who didn't pay me after his initial deposit, so I rescinded my work, as the contract permitted.

It's tough to deal with strangers. Contracts help.

For more, see http://havingmyownwebsite.net/sitedeveloper.aspx

[nadeemansary]

We used the services of a web design/development company who eventually managed most of our sites. The service was great and was also good value for money (at the time). They suggested that if we had a dedicated server we would save a lot on hosting as we had so many sites. As we didn't know much about the whole server business, we asked them to go ahead and get one. They set everything up and we sent the payment. After a couple of years things changed. They started demanding more money and negotiations fell through. When we asked them for FTP access to the files, yeah, we did get all the files but they were coded.
To cut a long story short, we ended up losing ALL the sites and I had to get everything done in-house, under my supervision to this day.
Once bitten twice shy...
No offence to developers & designers, but guys thanls but no thanks...

[nadeemansary]

Forgot to mention that although we had all sorts of airtight contracts but as the company was outside of the UK, the authorities couldn't do a thing about it.

[joomx]

We recommend that our clients use Joomla, which is an open source CMS that can do pretty much anything from ecommerce to real estate to blogs, etc. This means the client OWNS the software, design, images, etc. Or course, we make it SEO and SMO from the start so there is no retro-fitting later.


Actually, this not true. If you use an open source application, the client does not "own" the application. Yes, the client can use it for at no cost as long as he/she wants and he/she can take it to another host, but he/she still has to abide by the terms of the open source license.

If the client truly "owned" the open source code, then the client could sell it and file trademark violation lawsuits against all other users.

You're both not true.
OpenSource is owned be the person/company who made the software or hold the copyrights.

One 'good' thing with OS is: it is free (the software but not the rights and services around).
Another is: if you (the developer) code an add.on (or something like) or change it, the intelectual rights are yours.
The final (here specially Joomla!): due that actual GPL license all (!!) commercial services are not allowed, because this GPL (2.0) does not allow commercial sercives which are based on (here Joomla!).

Yes you are right if you say (e.g.): '... with Joomla! you can do almost everything ... ' but not if it should be for a working website.

Unlikely 80% of the Joomla add.ons is bad coded or does not fit the customers need.
Therefore you have do adopt/customize an existing or create a new application.
Now you are the owner of this software piece - or the contract says something other.
The License must be the same (in case of adoption) or could be another (if it should be correct after existing GPL not a commercial one!), but the copyright holder (intelectual rights) are you.

[MarcThai]

It's difficult to understand how unscrupulous some people can be. Get the heck out of there as fast as your feet can take you. These guys are crooks!

I always tell my clients to buy their own domain name. It is the same as the name of a bricks and mortar business. Without it, you can't operate.

Then I help them order their own hosting server. This is the same as renting business premises. Again, they need somewhere to operate out of that they pay for.

As a webmaster, our job is to make the website, not to control our clients' businesses. We should provide the best possible tools to help clients do the business without any worries about whether they may one day lose their ability to operate.

Even if you have signed a contract with these people and paid some money, get out. Find a decent webmaster who will work for you....not the other way around.

Better to lose a little money now and not have to worry about whether these sharks may some day take over your business and leave you penniless.

.

[MarcThai]

I have a clause in all my contracts that gives the client ownership of all the "work", i.e., graphics, text, programs, as soon as they make their final payment. IMHO you'd be foolish to accept anything else.

On the other hand, the contract protects me too, because I had one person who didn't pay me after his initial deposit, so I rescinded my work, as the contract permitted.

It's tough to deal with strangers. Contracts help.

For more, see http://havingmyownwebsite.net/sitedeveloper.aspx

Absolutely! Contracts don't just help. They are essential. Clients appreciate a contract that spells out exactly what to expect. I wouldn't leave home without one.

,

[joomx]

It's difficult to understand how unscrupulous some people can be. Get the heck out of there as fast as your feet can take you. These guys are crooks!

I always tell my clients to buy their own domain name. It is the same as the name of a bricks and mortar business. Without it, you can't operate.

Then I help them order their own hosting server. This is the same as renting business premises. Again, they need somewhere to operate out of that they pay for.

As a webmaster, our job is to make the website, not to control our clients' businesses. We should provide the best possible tools to help clients do the business without any worries about whether they may one day lose their ability to operate.

Even if you have signed a contract with these people and paid some money, get out. Find a decent webmaster who will work for you....not the other way around.

Better to lose a little money now and not have to worry about whether these sharks may some day take over your business and leave you penniless.

.

Fully agree with you, it is not my business to take control over a website, etc.
Without any contract on front of making an codeline, i do not start with the work.
Also without any upfront payment - no start.

About the discussion of domain(name) ownership: in a serious partnership (as i see the relationship with my customers - always!) this should never (!) be a discussion.

And - finally - it must be always be handled diferent: coding, images, text, design, layout.
I do not want to see anything of my work on another site - and this should also be in the mind of my clients.
If the 'job' is finished, i can only maintain and assist, but never own a domain/website.

[JohnX]

Let me just say this - that is crazy!!!

I'll go back and read the responses, but in this internet age you MUST be in complete control of your materials or you are not in control of them at all.

I even tell my clients to register their own names so that they have control and an understanding of how important control is.

Just my nickel -

[Martinscholes]

Wether the client knows it or not, all of the creative assets, text content, and programming methodologies is owned by the development company.

I have debated this issue for a decade now, and each time it comes up, I give the Wedding Photographer analogy...

When you hire a wedding photographer, you are paying for their services and you pay extra for the prints. The copyright and intellectual property is theirs and this is actually how they make a profit. The reprints from the negatives are the property of the photographer, and anyone who wants duplicates of the photos needs to go through them.

The same thing applies to web sites and other designed property... Unless the web designer signs a contract that says the sources files and code will be turned over to the client along with a transfer of copyright ownership, then the work belongs to the designer.

The only way the work is the property of the client is if the job was a "Work for hire"... such as being a full-time employee or having a designer do a commissioned piece... and their should still be a contract signed in both instances.

rp

I am not sure if the wedding photographer analogy works, here.

Is it not the case that it is closer to the industrial photographer, rather than the wedding photographer?

An industrial photographer is contracted to take a certain number of photographs of -say- a new industrial processing plant. The company who hires his or her services may well specify that the copyright of the images are bought outright, perhaps for an enhanced fee.

[websiteproperties]

This thread really got a lot of activity! As a website business broker I would recommend against developing a site that you don't completely own both the content and the software and programming - I made the mistake of licensing CRM software from a company called infusion and it has been expensive, time consuming and frustrating - I am going to build out my new crm, database, and ecommerce with solutions that I own outright after either developing or purchasing so when it comes time to sell the website business, there are no encomberances and all the assets are transfered.
so I recommend finding solutions you will own outright - more value to you and any new owner in the future.