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Old 03-28-2006, 08:00 AM   #1
Linda Baldwin
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Default Who owns the code?

I'm sure this has been hashed over many times, but I'm going to ask again because I don't want to cheat a soon to be former client. Some of you may remember my client who sells hams. She left me a year ago to have a new site done by Christopher Newport College and paid them $2500 for the job. She didn't realize she was not paying for hosting or for a shopping cart. Fortunately for her, they did not get the job done by the promised date and she came back to me. I told her how to get her money back and she did. Also fortunately for her I did not trash the site I had written for her. I agreed to take her back for a monthly fee. I then saved her from wasting another $1300 on a bogus search engine optimizer. Well, she's at it again, says she has a web designer but he doesn't know anything about shopping carts. She wanted to know if she could just have him take over the site where it is. The answer is no because the account is in my name, readyhosting.com has been sold, and even if she opened a new account with the new readyhosting, they do not offer a free shopping cart. They are allowing existing Cart32 users to continue to do so. So I know I'm on firm ground there. She wants to know if her new "designer" could just copy and paste the site to some other ISP. I said that she could not because it is copyrighted. Am I correct here? She also wanted to know if she could have the pictures from the site. All except the logo are in the public domain apparently, so I told her that would be fine. However, I created the logo from a picture I took, so I told her that was also copyrighted and she could not have that. Am I correct here?

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Old 03-28-2006, 08:27 AM   #2
Kelvyn
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Well, US law is probably different, but here in the UK the copyright for the web site code is passed to the client unless specifically stated in the job contract. For images the situation is a bit muddled, but any images derived from those provided by the client still belong to the client, whether modified for web use or not. Images taken by someone else, and labelled as such on the site would clearly not belong to the client. In your case, you should have copyright of the logo image - unless she paid to have it prepared...

This sort of thing is a minefield. I have taken over sites from other "designers" for various reasons, and in no case has the use of the existing code and imagery been refused. For those that have not required alteration I have kept a "designed by" link on the home page (and included a "Maintained & hosted by" link).

Personally I'd be glad to see the back of a client like this. Let then have the code, minus the image, and go off and find a new web hosting service. If the new guy knows nothing about shopping carts then he will have more than a few problems sorting things out. It is not simple to move a cart system.

   
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Old 03-28-2006, 10:10 AM   #3
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If she's been paying you by the hour or whatever to produce and maintain her site, then certainly under the law here in Australia, she would own the intellectual property unless specified otherwise.

You refer to 'copyrighted', which is a purely US term in reference to registering copyright, which certainly doesn't happen here because copyright is inherent and, unlike some other forms of intellectual property such as trade marks and patents, does not need to be applied for or registered in any way. So did you register the copyright of the web site in your own name?

   
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Old 03-28-2006, 10:13 AM   #4
Michael Rowley
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Kelvyn:

but here in the UK the copyright for the web site code is passed to the client unless specifically stated in the job contract

Both in the UK and the USA, assignment of copyright has to be in writing. But in printed matter the overall design (as opposed to the text) is the publishers copyright; who the publisher is for a web site might be determined differently.

   
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Old 03-28-2006, 10:17 AM   #5
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Quote:
Originally Posted by Linda Baldwin
She wants to know if her new "designer" could just copy and paste the site to some other ISP. I said that she could not because it is copyrighted. Am I correct here? She also wanted to know if she could have the pictures from the site. All except the logo are in the public domain apparently, so I told her that would be fine. However, I created the logo from a picture I took, so I told her that was also copyrighted and she could not have that. Am I correct here?
The web aspect may complicate things. But let’s pretend that you had designed a print magazine for this idiotic client (and realize that I am an old graphic designer but not a lawyer).

In the U.S. graphic design — that is, arrangements of elements on a page, color choices, and so on — are not protected by copyright. (Nor are letter shapes, either in art or a font.) A distinctive style of some sort could conceivably be trademarked, but that wouldn’t be the issue here.

Writing — text you write from general information provided (not just edit, in other words) — is yours so long as you were an independent contractor who did not sign something granting rights to the client.

Illustration — images you created from scratch, photos, drawings, etc. — are yours until/unless you give away or sell rights to them in writing.

Logos are in a grey area, but the least painful solution is to transfer all rights to the client, in writing, for payment.

Now is it the same in the virtual design world? Dunno. Ought to, but . . .

I think I agree with Kelvyn — this client does not deserve your services, and since it appears she has the loyalty and attention span of a maggot, I think you would be well rid of her.

Then, in an ideal universe, I think you should make a deal with one of her competitors and produce the best damn ham sales site on the web! That would get her attention.

Good luck with it all.

   
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Old 03-28-2006, 01:04 PM   #6
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There are lots of words here to read ( which I havent :-) I think the law sort of says - if I go to a garage and by a BMW - the Invoice reads BMW Car and that is what I buy. I do not buy the plans or tooling to produce the car. So I would go back to the original invioce to see what it said - that is what the client paid for. In the old days if we quoted for supplying film and plates seperatly then the client could demand them - if they were included then they were deemed to be an intrisic part or production ( like a printing machine ) and they had no right to them
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Old 03-28-2006, 05:19 PM   #7
Hugh Wyn Griffith
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Quote:
Originally Posted by annc

You refer to 'copyrighted', which is a purely US term in reference to registering copyright, which certainly doesn't happen here because copyright is inherent
I believe copyright is recognized as inherent in the USA now also although you can register additionally.

See http://www.copyright.gov/

Note the reference to "for hire":
<< In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:
  • (1) a work prepared by an employee within the scope of his or her employment; or
  • (2) a work specially ordered or commissioned for use as:
    • a contribution to a collective work
    • a part of a motion picture or other audiovisual work
    • a translation
    • a supplementary work
    • a compilation
    • an instructional text
    • a test
    • answer material for a test
    • an atlas
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.... >>



Linda is not an employee and website is not listed as a work and that it has to be expressly agreed in writing ...

OTH Section 101 says <<A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result 5

5In 1980, the definition of “computer program” was added to section 101. Pub. L. No. 96-517, 94 Stat. 3015, 3028. The Intellectual Property and High Technology Technical Amendments Act of 2002 amended section 101 by moving the definition for computer program from the end of section 101 to be in alphabetical order, after “compilation.” Pub. L. No. 107-273, 116 Stat. 1758, 1909. >>

So is a website a computer program -- or does it merely use a computer program? It would seem that the source code is a computer program.

IANAL <g>
---------------------------------------------------------------
edited to add missing "result" at end of definition of "computer program"

   
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Old 03-28-2006, 07:18 PM   #8
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If someone pays me to create a site for her, I would simply turn over the HTML pages and graphics and let her be gone. But if we had a contract that said she was leasing the site and/or graphics (not the hosting), then I would retain it.
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Old 03-28-2006, 10:12 PM   #9
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Linda,

Quote:
She left me a year ago to have a new site done... and she came back to me. I told her how to get her money back and she did... I then saved her from wasting another $1300 on a bogus search engine optimizer. Well, she's at it again, says she has a web designer but...
I don't understand why she keeps looking for greener pastures ??? You have given her good advice, and IIRC from old CIS days, put together a pretty nice site for her. Do you know why she keeps trying to stray ?

I agree with the others that she now owns the site code, thats the way I understood it to work in my contract programming days. But I've always tried to keep a copy of my own work for use in other projects.

I like the idea of selling your knowledge and skills to another ham company if you can't repair the relationship with your current one. Perhaps a hint of that might even help ?

Good Luck,

   
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Old 03-29-2006, 12:48 PM   #10
Steve Rindsberg
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>> So is a website a computer program -- or does it merely use a computer program? It would seem that the source code is a computer program.

You could also argue that the files that make up a web page or site are data files that are consumed by programs -- web servers and browsers -- much as word processing files are consumed by word processing programs.

In that sense, they're not the same as the computer source code for the program itself work but containers for the expression of ideas in a format that a program can consume.

IANAL II

   
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