Whether you are a web designer or looking to hire one, a contract for website design services is a must when pursuing a project. Proceeding without a development agreement opens you up to a variety of legal problems.
A website design contract nails down the key terms of the designer-customer relationship. Issues that are covered include the obvious – how much will be paid for the services; when must the services be delivered; and what happens if they are not. In short, how much is it going to cost and when will it be done?
The contract, however, goes far beyond these issues, and it is critical the parties address particular issues. Intellectual property is certainly one of the key topics and it all starts with copyright.
“Copyright” is exactly what the name suggests. A person who owns the copyright of some work is the only person that has the right to copy it. If I write a book, I am the only one who has the right to copy and sell it. I can, of course, sell the right to someone else such as a book publisher.
The interesting thing about copyright is it manifests automatically in the person that creates the work. The “work” in the case of a website is the code that is written to create it. Since the designer is writing the code, they own the copyright. One of the significant issues in the contract is whether the designer will assign all copyrights associated with that code to the client.
The internet is unique because it has become the land of open source code. Programmers and designers write code to accomplish certain tasks and then release it on the web for free so others can use it as they see fit.
The use of open source code in a web development project is a significant issue. The problem is one cannot copyright open source code, which can make it difficult to fight off people who copy part or all of the website in question. Given this, thought must be given by the client in regard to how restrictive they wish to be in designating the type of code a designer can use in the project.
Sell The Site
The sale of a website is a tricky thing that involves a good bit of due diligence. How so? Well, a buyer wants to know what they are getting. To this end, the buyer is going to want to see the original design agreement. The focus of the review will be on the status of the intellectual property rights associated with the design. If the site template contains open source code, the buyer may lose interest or reduce their offer. A site owner that thought they had all original code is going to be furious.
The old cliche is you get what you pay for these days. If you pay $4,000 for a website from a freelancer, you are not going to get a site built from scratch. This lack of exclusivity isn’t necessarily a bad thing. A quality site built from scratch can cost $50,000 or more depending on the functionality. Paying $4,000 to get up and running is often a better choice. For this amount, you receive a functional site and can determine if your business idea will be profitable. If the site takes off, you can pay to have a site built from scratch for the much higher fee.
In some cases, the value of the site is in the personality and text content instead of the site itself. Consider this site. The only original work is my photo and the text written in these posts. Everything else is public domain code in the form of a WordPress platform, a Genesis design framework and a Prose theme that was customized by a freelancer for me. I paid less than $200 for it. Can I copyright the site or any of the code? No. That is okay because the value of the site is in the text I write, the rankings I have on search engines and the following I have via social media. If another attorney wanted to buy this from me, that is the value they would look at – not the site design. You may want to consider your site from this perspective to see if the same holds true for you.
Should you enter into a contract for website design services? Absolutely. It helps define the relationship between the parties. This legal foundation should lead to a website design that you love. Contact me to learn more about site design contracts or to obtain one.
Richard A. Chapo, Esq.
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