[thelist] Copyright of the Web Site Design

[alan herrell - the head lemur]

Minh Lee Goon wrote:
> Hi there,
> 
> I'm hoping someone can help me with a question of copyright that is 
> addressed in my contract. I understand that the content of the web site 
> belongs to the client, but does the design of the web site (whatever 
> that may entail)? From looking through other web developers' contracts 
> online, it seems common and clear that the _design_ of the web site 
> belongs to the developer.

Forget what you see online as a 'standard' contract.
Contracts are as good as the first court appearance. :)

Don't over complicate your life. Unless you are married to an 
intellectual property attorney, sleeping with one, or have their heart 
in a jar, you are just asking for aggravation.

In most cases as a designer/developer the client provides you with 
material, writing, photos, logos, etc. In the US and the signatories to 
the Berne Convention this material is already under copyright to the 
client, and all you are doing is cutting and pasting.


This portion of development is usually covered under "Work for Hire", 
which is simply 'money for stuff'.

My advice is to just work for hire. You will sleep more and better.

> Should I be fighting for copyright to the design of web sites? 

Whatever for? there is almost nothing that does not show up in a browser 
that is not derivative of prior art. Like the 'voice' nonsense in CSS to 
get IE5 and 6 to make your div's work right. Zeldman was the first to 
popularize it, but it was a suggestion from Tanek Celik, who was one of 
the IE developers.

Most of the other display properties that are used are either following 
the W3C recommendations, stretching them or breaking them. Most of the 
menu toys that are out here, have been developed by various members of 
this community and and others, independent developers and have been 
released into the wild, as open source.

>Or does a 
> hired job mean the client owns everything, including the design?
Under work for hire, yes.

> Maybe, more importantly, are the repercussions (if any) of letting the 
> client own copyright to the design. 

Repercussions?

Are you going to use store bought scripts and file off the copyright 
notice which is almost always required?

Are you going to post libelous material on behalf of a client?

Are you going to accept material from the client presented as belonging 
to them, only  to find out that they lifted it from some other on line 
or off line source, without permission, clearance, or attribution?

Those are rhetorical, Minh, but point out some of the pitfalls of the 
game of pixel mechanics.

>What would you be giving up by 
> letting the client own the copyright? What part of the layout would you 
> NOT be able to use again?

all of it, none of it, or some of it.

Assuming that you did not end up being the copywriter for the text 
portion, the rights are not yours.

If you design the site, new logos, business cards, do the copy writing, 
due diligence, proof reading and determine the future direction of the 
business, you can retain copyright, however things like logos, 
trademarks, service marks must all be applied for, and fees paid.

You will need a hell of a lot of money up front and patience, as 
governments run slow.

In the case of a banner or a background that you spent hours 
photoshopping, provided it contained no stock photography under 
copyright, you can certainly claim copyright, but in order to defend it, 
you must register it, which will cost you money, and then you will need 
to be vigilant about staying up late at night surfing the web to make 
sure that nobody has right clicked, saved, renamed and reposted it.

But in all of the cases except for the banners and backgrounds, you are 
moving way out of the designer world, into a business manager, PR Flack,
promoter, copywriter, proofreader, copyright claim jumper, and 
intellectual property lawyer. Unless you are getting stock options, an 
equity position, or have plans to take the company public, you really 
want to keep your life simple.


  the head lemur