Web Services, Contracts and Copyright

    January 18, 2007

What’s the Deal With Contracts, Copyright and Web Related Services?

If you’re the client, make sure you include the following steps when hiring a service provider to ensure you don’t get involved in a mess like a copyright or legal battle, no matter how much you trust them. While this may change after you’ve worked with them and established a relationship, there should always be a WRITTEN agreement in the beginning, signed by both parties. It may sound simple, but too many times people forget, or make one and don’t give specifics. Now whether you need a contract for the $200 graphic design or writing job is up for debate, but for larger projects you should always have a contract.

Writing up a contract, even if it’s just a paragraph, can help immensely with any disputes that may arise. Keep in mind that despite popular opinion, a lawyer isn’t necessary for a contract to be legally binding. There are some excellent templates available for free or for a small fee. Just make sure each of yous signs the agreement. You can even prepare what’s called a copyright assignment, which assigns you, the client, with full, long or short time copyrights.

A lot of web designers and graphic designers keep the rights to the designs they do for clients; for example, even if a graphic or web designer creates a layout, logo or other graphic, they automatically own the copyright, even if they sell you the work. This can create problems for the client in the long run, and a lot of disputes occur because of situations where the site owner wants to modify, change or take their site in another direction but can’t, or if they do, are required to use the existing designer, writer, etc. Copywriters often do the same thing, which is that they essentially treat the work they do as a permanent loan to the client that can’t be modified.

If you’re doing something like web design or graphic design, the key is to get all the files from the designer that you need in case you wish to perform any modifications. A good designer will give you these anyways, and if they don’t, they should. Tons of website owners get screwed because of this, as they have to pay the designer to do every single modification, even if they have a webmaster. Thus, check your options and make sure you establish this before you hire someone to do your website graphics, layout, content, etc. An exception to this could be really large projects, as these usually invlove branding and marketing; the publicity and credit a designer gets for these projects ensures they’ll probably keep the files.

Another thing people don’t take into consideration is agreements via email. Technically, if you agree to hire someone or if a contractor agrees to provide a service, you are obligated to follow through. The same is true of emails discussing copyright. Since these are hard, cold evidence, keeping every bit of correspondence is critical.

The US Copyright Act, created in 1976, states that the owner of all the rights in copyright is the creator, or author, of those rights. From the first moment a designer creates something that can be copyrighted, the rights belong only to the designer, thus you have no claim on the work in question.

Section 201 of the US Copyright Act talks about initial ownership: “Copyright in a work protected under this title vests initially in the author or authors of the work. Section 204 of the same Copyright Act goes on to state in part: Sec. 204. Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

In a nutshell, this means is that if the client or business owner doesn’t get a written contract, they may not have any rights to the work once its done. Granted, some clients don’t care, but many others do.

The bottom line is that a copyright is a bundle of rights that should, in my opinion, always be protected by a contract. Who owns the rights and who doesn’t depends on what your contract says, what’s agreed to and many other factors you have to hammer out with your service provider.

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About the Author

Aurora Brown is the editor and head copywriter for Social Media Systems online marketing company and specializes in producing powerful, accessible content for the web. She co-authors the 3net Search Engine Marketing Blog and is working on her first novel.