I understand that you may be trying to start a company and build a website on a shoe string budget.
You may think that you are saving money by hiring an individual or a small Web design shop to create your website.
You may think that you are getting a real deal because the individual or tiny shop happens to be highly creative and truly talented.
You may think that you are saving money by not having an IP attorney review the contract, if any.
You may think that you own the website design and logo that you paid to have designed. Your Web designer may even tell you that you do.
You may think that the contract that the Web designer gives you really assigns the copyright to you because it vaguely talks about ownership and copyrights in the same paragraph.
You may think that your Web designer will understand copyright law and not rip off other sites and put infringing material on your site.
YOU MAY BE VERY, VERY WRONG!
Legally ignorant Web designers (“Amateur Web Designers”) can create a legal cesspool.
Warning! Some Web designers don’t understand the basics of copyright law!
Amateur Web Designers may be exceptionally talented and legally clueless.
Amateur Web Designers may be launching their own startup on a shoe string budget. They may decide to save time by not researching the law. They may decide to cut costs by not getting competent legal help. They may rely on a best friend’s girlfriend’s brother or a friend of a friend for business and legal advice.
Amateur Web Designers may stick their heads in the sand and ignore the legal issues related to their work.
An Amateur Web Designer’s lack of legal knowledge can have serious consequences for your business.
Amateur Web Designers will not use proper contracts with their clients that correctly assign (transfer) the design copyrights to the person or company who pays for the design.
Cavalier Amateur Web Designers won’t use a written contract of any kind.
Earnest Amateur Web Designers may try. They may have good intentions. They may even draft a contract trying to transfer the copyrights and give you a copyright assignment.
But if they don’t understand copyright and contract law basics, they won’t use the proper assignment language.
Amateur Web Designers may think that it is utterly unnecessary to learn about copyright law. They may think they can just use what seems like logical language rather than legal language. They may think that legal language is unnecessary and utter hogwash.
But Amateur Web Designers who draft their own contracts may create a legal quagmire.
Some crappy amateur contracts are internally inconsistent, talk about some of the individual copyright rights in strange ways, and create a tangled mess that is actually worse than no contract at all.
I know it’s hard to read contracts and that legal language sounds like mumbo jumbo.
But Web designers need to understand that the copyright statute and judicial decisions that interpret the statute and language in litigated contracts actually dictate the proper wording for copyright assignments.
Law makers and judges determine what language is appropriate. And if the contract isn’t written properly, it won’t legally do what the designers thinks it does and it may create a putrid, legal cesspool.
You may be wondering, does it really matter that I don’t own the copyright to my website design?
If the Web designer doesn’t use a proper contract, then you won’t have clean IP rights to the website.
Without a signed, written copyright assignment, the default law is that the Web designer owns the copyrights.
No skin off the designer’s back. It is your problem going forward, not his.
If you don’t own the copyright to your website design:
- Depending on your contribution to the content, you may not be a joint author and you may only have an implied license to use your company’s site.
- You may be infringing the designer’s copyright when you change or redesign your company’s site at a later date.
- You won’t be able to sell your website to a competent company who does IP due diligence.
- You can’t register the website copyright with the Copyright Office. If you don’t register the copyright and someone copies your site, you can’t bring a legal action for infringement, get statutory damages or attorney fees.
- Depending on the specific facts, if pissed off, your Web designer may have the power to stop you from using your company’s site.
Too bad for you.
If you don’t have a written, signed copyright assignment for the design of your website, you may want to make the Web designer your BFF.
If your Web designer doesn’t understand copyright law, you may be in for more unpleasant surprises.
Amateur Web Designers may infringe the copyrights of others and use unlicensed or improperly licensed material on your site. When you operate the site, you will be the infringer.
Amateur Web Designers may use video that they don’t have the clear legal right to use.
Amateur Web Designers may be so clueless that they don’t have a proper copyright assignment to video that they have independent contractors shoot for them. If they don’t have an Independent Contractor Agreement that assigns the copyrights to their business for the contractor’s work, then the contractor — yea the guy who shot the video — owns the copyrights.
When you use the video on your site, you will be relying on a tangled IP mess and a domino line of implied licenses.
Amateur Web Designers may use software that they don’t have the clear legal right to use.
They may copy and use unlicensed code. They may use code that they think they own that is really owned by their former employer.
Amateur Web designers may also unwittingly use open source code that has horrible commercial implications for your site.
You may pay a small price for Web design now and pay a big price later.
What does a professional Web designer do?
A professional Web design company will have a proper contract drafted by an attorney who understands copyright law issues. A proper contract will assign the copyrights for the overall design, new images and any logos to you. This will allow you to register copyrights to your logo and website if you so desire. (There is usually a carve out for designer’s software that gives you a license to use old code that the designer reuses.)
A professional Web design company will have a proper license to use any photographs and other third party material on your site.
A professional Web design company will disclose any source code that they use for the website’s foundation, have proper licenses to use the software, and give you a copy of the related licenses when asked.
A professional Web design company won’t copy other sites and infringe the IP of third parties.
A professional Web designer may be well worth the money.
In my personal opinion, you may want to hire a professional Web designer if:
- If you are not married to, closely related to, or best friends with the Amateur Web Designer who is creating your site
- You are paying a lot of money for the creation of your website
- The designer is creating a lot of original images for the site
- The designer is creating your company logo
- You plan on using your site for at least a year
- You plan on modifying your website at a later time
- Your website is the core of your business
- You might want to sell your website in the future
I’ve used small shops for the design of my websites to save costs but I’ve taken precautions.
I required the designers to sign a contract that assigned the copyrights to me. I also reviewed the contracts for underlying open source code that was used for the foundation for my sites.
I ABSOLUTELY WOULD NEVER HIRE A DESIGNER WHO WON’T SIGN A DESIGN COPYRIGHT ASSIGNMENT!
I also believe the best practice for licensing photographs on your site is to license the photos yourself after the designer has selected them from a stock shop. This way you make sure that there is a license and that the license is appropriate. I’ve also gotten a signed written copyright assignment from a photographer friend who has taken photos for my sites.
To make sure that you have the proper rights to your website’s IP, you can hire an Amateur Web Designer and an IP attorney to draft a proper website design contract for you. Let the attorney explain the contract to the Amateur Web Designer.
Ultimately, protection of your website’s IP and reducing your risk of copyright infringement is up to you.
You need to make sure that you have the legal right to use every element of your website. In business, it pays to be informed.
If you want to understand more about copyright law, download the free ebook IP Law FAQ or go to the Copyright Office’s website.
The information provided in this legal blog is not intended as legal advice and does not create an attorney-client relationship. Please do not submit questions or comments seeking legal advice or submit confidential information through this blog. By communicating through this blog, you understand and agree that the information will not be treated as confidential and the publisher has no duty to keep it confidential.