Who owns the code?

[MtraX]

Hi Jurgen

I've had similar issues. We usually regards all source files to be our property, that includes flash and and other programming files which had to be compiled to reach the end product (which becomes the client's property), unless stated otherwise in our contract.

In an instance where we might do extensive dhtml programming and scripts, those would also remain our property, since there's intellectual property, programming methodology and in essence trade secrets involved in creating a piece of code, which if it falls into the competition's hands, could give them an unfair advantage.

Just my thoughts.

Cheers
MtraX

http://mtrax.tblog.com/

[netman4ttm]

The designer owns the code.

The easiest examble. Your accountant. When the IRS wants your paper work, the stuff that you paid the accountant to create, they don't ask for your permission. Why, because the work belongs to the accountant.

[voodooboy]

Writing code is the same as writing an article, taking a photograph, or drawing a picture. Once the code is complete, it is the property of the creator.

Now if the user purchased the creation the site, then the user has purchased the use to the code, but not the rights to the code. Unless it is written in their contract that they get the rights to everything within the site, then the code (even the design and its elements) still legally belong to the designer/programmer.

[Diana]

IANAL and none of my designer friends are either. That said, on a large design list I'm a member of this topic has been discussed over and over and over. In our opinion (for the most part), it's not the code per say that the designer owns, but the *look*, the *design*.

If my client wants to let Joe Schmoe do the maintainence and change the content, fine. If Joe starts messing with my graphics, the layout, the *design* portion, I'm going to probably get witchy.

I do retain copyrights to my designs. I don't charge the client *enough* to cover the copyright, in the inital design (most are in need of a quick, lovely site, and mid range cost). I'm quite willing to sell all rights too, but I don't just give them a way for a pittance. My contract does state that they own a forever license to use the work and I can't get upset because they choose to host @ XYZ and have them maintain the site.

Of course, I'm not a designer who holds her clients hostage either, which is what I *smell* coming from the OP's prospect's designer. If my clients want to go, fine, they can take their site (I'll even give them a copy on CD for safekeeping, if they ask) go with a new host/designer and all's well.

I've seen a lot of designer's pull the "hehe we'll use proprietary stuff and then charge them a small fortune to host the site (to pay for proprietary script), then when they want to move, we'll surprise them by telling them their site won't work. *sigh*

Try to sell the guy on a redesign, explain the copyright issues and hope he is reasonable. If he's sure he owns the right, ask him to get it in writing from the old designer. Cover your rear, in writing.

[DrTandem1]

My non-legal opinion, as I'm not a lawyer: I think this is like arguing who owns numbers. Sure, you can copyright written material, however, I would simply point out that probably 99.9999% of the code found in the website in question can be found in other sites.

Now, a script that was developed with the understanding that it can only be used under license or contract, is a different story. Since there apparently is no contract as stated in the original post, this point is unclear. However, simply using generic HTML tags and placing content in between them, it is unlikely that the HTML code will be considered proprietary. The content can be considered proprietary, but it is generally produced by the client or for the client.

Someone mentioned the "look" of the site. There are hundreds, if not thousands of sites that look just like Amazon.com's design. I don't think anyone has patented the look of a website other than a trademark or a logo. I haven't heard of Amazon.com suing for this.

Bottom line, if there is no contract and the code is under the client's registered domain, it's the client's code.

[TheWebDoctor(tm)]

Under US Copyright laws and case law, the programmer owns copyright unless otherwise stated in a written contract. Any change, if the copyright has been applied for and approved, will result in a minimum of $10,000 per incident. Depending upon the issue, the incident could be as simple as adding a letter or as extensive as adding a new paragraph because the body of the copyrighted material has been changed.

Fighting an issue of another designer changing codes without a copyright contract is an act of futility if copyright has not been established with the government responsible for copyright approval and management.

If the contract states that the copyright is maintained by the designer, any change is detrimental to the client and the new designer. Both parties would be held in breach.

I'm speaking from personal experience due to a client's breach in contract and copyright infringement.

The best recourse is to redesign the site and grant full copyright issues to the client. They will trust you more and bring you more clients. It's a win-win situation then.

I hope this helps everyone.

[DrTandem1]

The modified question:

<<So my question changes just a bit into: How do others handle it when a new customer comes in and says "I already have a web site but I want to change to your company to maintain and host it and make updates to it?">>

My response:

A designer hired to maintain and/or change an existing website is under no obligation to consult with the previous designer any more than a house painter would have to consult the previous painter before commencing work.

Any conflicts that arise from the previous designer and the client have nothing to do with the new designer. Indeed, motion pictures can go through numerous directors during production as conflicts arise. The directors are not obligated to consult one another. This is between the producers and the various directors.

Again, any contract that is solely between the client and the previous designer is between them. You, as the new designer, cannot be expected to be responsible for someone else's contract. As far as taking credit for the work, the subsequent designer would be wise to only claim credit for modifications unless they have redesigned the site to the point where it is obviously different from the previous one. In other words, you may have a problem with the first designer if you claim credit for work that they had done. However, you still would have no obligation to the contract to which you were NOT a party.

[russmann]

Writing code is the same as writing an article, taking a photograph, or drawing a picture. Once the code is complete, it is the property of the creator.

Now if the user purchased the creation the site, then the user has purchased the use to the code, but not the rights to the code. Unless it is written in their contract that they get the rights to everything within the site, then the code (even the design and its elements) still legally belong to the designer/programmer.

IANAL.

Ok, if I purchase a photograph or painting, and decide to change the frame, that's my perogative as the purchasing owner right?

If I sell you a copyrighted book, you can do pretty much whatever you want with that book, short of reselling the information in it, because when you start to make money off my hard work, thats when we have a legal issue. But if you want to cut off the spine and put it in a spiral binder at Kinkos, that's up to you. If you want to rip out pages, rearrange the pages, take the pictures out and frame them for art on your wall... whatever.

So if I buy a web site from you and then take it to another craftsman to have it modified in some way, that's my perogative right? I'm not reselling the design, which is where the copyright would seem to come in play.

Any change, if the copyright has been applied for and approved, will result in a minimum of $10,000 per incident.

How do you apply for and approve a copyright? Is that something web designers do?

[davebarnes]

IANAL.

However, I used one to create a contract which I now have all clients sign. One part of it states:

5. Website Content
a. [customer] shall have sole responsibility for all content in its website and for all information or data disseminated.
b. [customer] shall have sole and exclusive right of ownership of any web pages and other creative design work created by MarketingTactics specifically for [customer] in connection with the Services performed by MarketingTactics hereunder, except for (a) software made or obtained by MarketingTactics; (b) trademarks, trade names, and other designations and insignia of MarketingTactics that may be displayed at [customer]'s website; and (c) a limited amount of general-purpose or reusable images, graphics, formats, or other components created or obtained by MarketingTactics for purposes not unique to [customer]. MarketingTactics makes no claim to any trademarks, trade names, or other designations or insignia belonging to [customer] that may appear in the website. MarketingTactics agrees to enter into such assignments and certificates of acknowledgment as [customer] may require in order to give effect to [customer]'s ownership rights hereunder.
c. [customer] accepts final responsibility for the selection and use of all creative, audiovisual, and personal works and images, including graphics, text, formats, characters, icons, information, data, sound recordings, and logos (collectively, the "Images"), which are included in any work (web pages or otherwise) used in providing the Services. [customer] represents and warrants that it has or, at the applicable time, shall have the right and authority, free of charge or restriction imposed on MarketingTactics, to copy, adapt, distribute, display, and publish the Images as provided in the operation of the website. As appropriate, [customer] shall obtain the content to such use through necessary permissions of any person who may have rights in the Images, including photographers, artists, sponsors, and depicted individuals or business organizations, including celebrities.
d. [customer] shall have the sole right to determine the scope of "disclaimers" included at its website, which may include (without limitation) copyright notices; trademark notices; date of release and warning that information may not be kept up-to-date; content disclaimer and limitation of liability; statement of policy regarding permitted uses; instructions for contacting [customer] if additional use is sought; and, if [customer] offers goods or services for sale, warranty disclaimers.
e. [customer] shall expressly approve, in writing, and/or verbally, the final version of any web page and any subsequent changes thereto. [customer] agrees to provide MarketingTactics with a list of the persons who are authorized to approve development and/or modifications of the website. During development, MarketingTactics agrees not to perform the limited search engine submission of [customer]'s website until after they are approved by one or more of those persons. Following development, MarketingTactics agrees not to modify [customer]'s website (except for routine or technical modifications such as spelling corrections or link changes) without approval of one or more of those persons.
f. MarketingTactics reserves the right, in its sole discretion, to refuse to include in any web page created hereunder any content that MarketingTactics, in its sole discretion, deems inappropriate or suspect under applicable laws. MarketingTactics reserves the right at any time without notice to suspend or terminate use of websites engaging in inappropriate or suspect use, display, or transmission. This includes (without limitation) copyright infringement, material legally judged threatening or obscene, or material protected by trade secret. However, it is expressly acknowledged that MarketingTactics is a service technician only, and not an editor, manager, or publisher, of any features, contributions, or content selected or used by [customer]. MarketingTactics has, and can be expected to exercise, no control over such matters, such that MarketingTactics? knowledge of inappropriate or suspect practices shall occur only when called to MarketingTactics? direct attention. MarketingTactics specifically denies any responsibility for screening, policing, editing, or monitoring such content.

This makes both parties happy.

I would have your new client go back to the soo-to-be-history design firm and get them to sign a short contract giving ownership to the client.

,dave

[DrTandem1]

Jurgen, simply put, I agree with you. I think ldyguique is confusing intellectual property and creative license. For instance, the Walt Disney Company has hired many artists to draw Mickey Mouse. None of the artists own any rights to Mickey Mouse. Mickey Mouse is owned by Disney. They pick and choose who they want to have draw Mickey Mouse at any given time.

There are probably many different contracts with different artists. Because one artist is hired to re-draw Mickey, does not mean that the first artist has any claim against subsequent artists. The intellectual property, Mickey Mouse, is owned by Disney. In the same sense, the client owns the intellectual property rights that make their website.

Now, netman4ttm made my point, even though he disagrees. Your tax returns still belong to you no matter who the accountant is. You are responsible for the taxes no matter what the accountant says. Otherwise, everyone would hire an incompetent accountant and when questioned by the IRS, they would have him pay their taxes. By the way, the IRS asks you for your tax returns, not the accountant. The account does not own the work.

The designer does not own the website, the client does. The artist does not own Mickey Mouse, Disney does. The CPA does not own your tax returns, you do. If you are hired by a company to perform work, the work you create while under their employ belongs to the company that hired you unless there is a specific contract affording you some share other than your normal compensation (salary).

Following some of the logic here, a convicted criminal wouldn't do time for his crimes as the lawyer "owned" his case.