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Let's say a prior web developer placed a copyright notice on a website in the web developer's and not the client's name. The prior web developer has been hostile and actually took the site down for some months last year. Site gets put back up just prior to a court date where client and prior web developer are in dispute because of tenant/landlord relationship.

Site now placed on new host and DNS and email are now completely out of prior web developer's control. New web developer cleans up the messy Dreamweaver-and-no-alt-attributes and lots of needless iframes code. New web developer adds a bit of CSS, unifies JavaScript. Site basically still appears largely as it did, but now with copyright now (c)2010 The Client, removed <u> tags, improved readability, SEO, accessibility, update-abilty.

There was (surprise!) no contract between prior web developer and client, just word of mouth. And until prior web developer was a bozo, was perfectly reasonable entity. Though apparently prior web developer refused to do any updates for several years.

Practically though, the design is unremarkable, a header, nav, and middle scrolling content window with images, and an empty footer.

So, now, the question (at last!): Does that copyright that the prior web developer put on the site mean anything legally? Assume it's archived in The Wayback Machine so anyone could see it if they look. Are there any other pitfalls in this situation the web developer should worry about? Any pitfalls for the client (beyond the standing bad blood)? Is it all such a mess already the practical step of moving and slightly-improving the site make the prior copyright a moot point?

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The law that applies depends on the country which you have not mentioned. –  JamesRyan Feb 1 '12 at 13:37
    
@JamesRyan The principles of copyright are often similar across countries, given the number of copyright conventions multiple countries are a party to. The answer was this was in the USA. Luckily this resolved peacefully: the former web developer has made no appearance, and the client is happy, and I was happy to help the client. –  artlung Feb 1 '12 at 16:49
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2 Answers 2

up vote 7 down vote accepted

As always, your best and most definitive course of action is to seek actual legal counsel with experience in copyright law. I'm not a lawyer and, as such, the following should be viewed only as my opinion and not legal advice.

The key phrase in the PDF that MrChrister linked to is:

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

My understanding is that unless there is clear verbiage in writing regarding a work for hire and the ownership of the work, anything created is automatically considered the intellectual property of the creator of the work, not the commissioner of the work. The process is automatic and the act of creation itself is sufficient to ensure intellectual property rights, meaning that applying the actual © symbol is largely redundant and serves more as a deterrent rather than a legally-binding action.

For this particular case, if there is concern and there was no written contract, again, my advice would be to contact a lawyer to clear up any lingering issues or doubts. If the situation is bad enough and has not actually been handled through court, the first developer could come back at a later date. (While I seriously doubt the veracity of his case, the person currently claiming to own 80% of Facebook would be a good example of this). I'd suggest legally checking into it now, even if it's more of a hassle and more expensive. The peace of mind may be worth it.

As an aside, it's situations like this that make it necessary to always have a written contract. Good contracts should clearly define ownership, responsibility, tasks to be performed, and should provide clear steps of action to be taken if one or both parties do not fulfill their obligations. If you're working without a contract, you're working without a net. It might not be today, but one day you'll fall.

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Sans contract, it really is a mess. I am going to share with The Client the issues and leave it for them to decide how to handle it going forward. Worst case, I can redesign the site with a few search and replaces and it'll look drastically different. Thanks for the analysis. –  artlung Aug 5 '10 at 0:11
    
I'll add, the "verbal contract" likely did not encompass intellectual property issues in any way. –  artlung Aug 5 '10 at 0:13
    
No problem. Again, the best course of action is to talk with a lawyer. Stuff like this can get really messy without a contract and the longer it lingers, the more stressful it can get. It's worth it, IMO, just to bite the bullet and get it taken care of legally to save headaches or surprises down the road. –  Virtuosi Media Aug 5 '10 at 0:17
    
As an added suggestion, it might be worth it for the new developer to have The Client agree to protect them from any potential liability that could result from the fallout if this goes bad again. Protection in writing, of course. –  Virtuosi Media Aug 5 '10 at 0:20
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The author of the site was "for hire" and therefore is not considered the owner of the copyright, the person who paid for it is.

http://www.copyright.gov/circs/circ1.pdf

Look at Page 2. Pretty sure this website is an audiovisual work, and the copyright belongs to the person who paid for it. Hence, (c) 2010 The Client is the only accurate copyright assumption, and for hire author was never the holder by default.

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Thanks for the thoughts, I hope your analysis is the more correct one, though the lack of a contract or a clear verbal agreement about intellectual property issues leaves it all very vague and messy. –  artlung Aug 5 '10 at 0:14
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Agreed on this. I consulted for a company that went through this problem, to include some serious squatting on the Domain name and such. Once we were able to prove via business records to the host that our client was the definitive owner (they ignored said copyright statement because it was just that, a simple statement with no action to back it up) we got the site back and began a transformation to distance our client from the past bad operator. As for legal, we also helped our client go that route too. A "shark" who sent angry letters was hired...problem solved without court! –  bpeterson76 Aug 5 '10 at 14:36
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