I recently received an inquiry from someone who’d found and read my Who Owns My Website? article. Concerned that she may not own her website, she asked for some guidance. Instead of charging her a private consultation fee, I decided I’d blog it instead so that others might learn from her situation. Her inquiry covered more than website ownership, so I’ll give you a condensed version:
“I stumbled across your website in my search for articles on “my web guy owns my website” which is my first concern. >>>snippp<<<
I was advised recently by a virtual assistant that I should be concerned if my web designer owns my website and that I should find out from him how to have it transferred to a (third party) host?
I’m not sure if I am using all the correct lingo here! but I must admit, I am somewhat concerned that a) I don’t have a contract between me and my web guy and b) if he *does* go bust, or for some other reason, he can take my site off the web, can’t he?
I’d be grateful for your guidance >>>snippp<<< and am located outside the United States …. does that matter?”
* Name and other identifying information withheld on request of the writer.*
It May Not be as Bad as You Imagine
The first thing I’d like to stress is to calm down and take your finger off your worry-button. There are ways to deal with this and other similar situations without getting grey hair over it. Fretting about it will not get you a solution and there are solutions, you just have to find the one that works for you.
IANAL = I am Not a Lawyer
It’s important to mention is that the author of this inquiry lives outside the United States which means that laws and rules in another country may not be the same as they are in the U.S. I’m not a copyright expert nor am I a lawyer. Absolutely nothing I say is to be taken as gospel. I can give some general information but it’s up to you readers to follow through with your own research and consultations with your own legal counsel as it pertains to your state or country of residence and your individual situation. A lawyer within your geographical area who’s versed in website law and copyright is much better equipped to answer your questions than I am.
The Value of a Website Contract
The first thing that jumped out at me is that this gal doesn’t have a contract with her web designer. Although in my opinion they should, not every designer works under contract. At this point for this situation a contract is an unfortunate after-thought. I’m not saying it’s to late to rectify things because it may very well be totally fixable.
If you want to know more about why I feel contracts are so important, read my Get Your Web Design in Writing article. The fact that there is no signed contract between these two folks might simply be because the designer’s not aware that contracts are an option for a web designer to utilize. I didn’t know there was such a thing as a website contract until after I’d been developing websites for a few years and lucky for me, I was enlightened by a group of experienced web designers. When I did learn, I promptly fixed my mistake and my contract has assisted in solving sticky situations at least three times in the past few years.
When issues occur, most often it’s because the client (very obviously) did not fully read or understand the contract. They got it, they maybe skimmed it (or not) then quickly signed and returned it without so much as a question or a second look at what they were signing. I’ve had folks get mad when something comes up and I refer them to the contract they signed. The thing is, if it’s in there and they signed it but didn’t read or understand it before they signed it, they have no one to be angry with but themselves. Having a contract is a great thing as long as everyone understands what it says.
Armed with only the little bit of information I have on this situation, the fact that there is no contract between this lady and her designer suggests to me that neither one of them would have a significant advantage in a court of law. It seems that she has rights as does the designer. In my opinion copyright law would play a big part in the overall legalities. I would venture to say that if push came to shove and this were to go to court, the judge might award the design to the designer and the content to the person who paid the bill for the site development. Awarding the content to the one with the wallet would only apply if she could prove that she wrote her own content and awarding the design would only apply if the designer could prove he did the design work. Reminder: IANAL.
Take a Look at Your Own Copyright
You might want to re-read your own website’s copyright. Not only does reprint permission need to be granted by you alone, but your designer didn’t even include his own design credit which for me is a hint that he might very well already consider your website to be yours. If a designer doesn’t include their own design credit, in some cases they don’t aspire to own any of it. Again, this is not written in stone and some clients (especially big companies) pay additional fees or make (contractual) agreements to not have the designer’s credit on their site.
You Need to Get ALL the Facts
This lady might be stressing out over website ownership for nothing. The web designer might be one that considers a web site he’s designed to be owned by the person who paid for the work. There are a lot of designers who work this way and the only way to find out is by asking the designer how he does things. Some of us “creative types” consider the design we make for a client as belonging to the client once they designer’s been paid for their work. Other designers consider their design to be theirs and have various different perfectly legal ways of dealing with ownership of the design itself.
I’ve always considered my designs as being mine, as in belonging to me by means of copyright law and my contract currently states that my clients are purchasing a license to use said design for their website. Why? Because like others who work as I do, we are proud of our work and we don’t want someone else to step in and make changes to what we worked so hard to create. I’m not saying I won’t change my way of handling this one day but I, like other designers, have our reasons for doing things the way we do.
Does all of this mean I own or want to own your entire website? Absolutely not.
What if someone makes a few changes to the original design (which aren’t always design savvy) and then slaps their own copyright on the website? This is considered theft. Others have made horrific changes and left the designer’s name on the site. Our good names and our reputations are reflected in our work. Would you want someone altering your work to the point of ugly? Would you want someone stealing your work? I think not. This is why copyright is so important.
Some designers will create the design and turn everything over to the client, others may have a client who wants to flat out own it and the designer will then will sell it to them. There are many many ways to deal with “who owns the design.”
The Web Host Thing
It sounds like your web guy also in some way handles the site hosting because you mentioned moving your site to a third party host. The host itself may have absolutely nothing to do with this. Depending on how upstanding your web guy may or may not be, the fact that he’s (perhaps) also hosting your site might not be as significant as you think. If he’s provided you with login information to things like FTP access and your site’s control panel my guess is that he’s not someone who’s out to intentionally defraud you in any way. If you don’t have any login info, ask him for it. If hesitates or refuses to give it to you, then I’d be concerned. Don’t jump to negative conclusions if you already have this information or until you ask him for it and he doesn’t comply.
Chances are he’s not hosting your website from a server sitting in his own private office. He’s either set up your hosting account with a hosting company or he’s a reseller for a hosting company in which case your site is actually hosted on the hosting company’s servers which are scattered all over the world. Hopefully, the server resides in your own country.
With the login information, you can simply go in and make a backup of your website. If it runs on a database, there are ways to do this which I won’t go into. You’ll have to research that yourself or contact someone you know who’s database savvy and can help or advise you.
Domain Name Ownership
On a side note, I did a WHOIS for your domain name and learned that you are the legal registrant which is perfect! Remember this is per U.S. law but I tend to think domain ownership would work the same in your country. If your web guy registered your domain name for you in your name, he’s probably not such a bad guy as you might think. At the very least he knows enough to register the domain properly. Some designers still register domain names incorrectly. I have no way of determining if they just don’t know any better or if they really do intend to claim the domain name as their own. Read my What’s a Domain Name and Be Wary of 3rd Party Domain Registrars for more on domain name registrations.
Obtain Your Website’s Pertinent Login Information
When you’re dealing with a freelance designer or one that owns their own small company where they may be the owner and the only employee, it’s a good idea to obtain all your site login information for all access points. Life tells us that one never knows what’s going to happen or when. Your designer could become seriously ill or even pass away suddenly. By having all the login information, your website is protected.
I provide my clients with this information. The problem I run into all too often is that the client doesn’t keep it, doesn’t read it, doesn’t know where they put it or any number of other reasons they don’t have access to it when they need it and so they contact me for it anyway!
Even if you don’t own your site design, you do have a right to the pertinent necessary information for site administration. You also must take responsibility to keep it in a safe place so you can get your hands on it when you need it and be able to do so without the help of the designer.
A One-on-One Might Just Take Care of Everything
I can’t say for sure but from what you’ve told me, I don’t see any hard evidence that there’s anything intentionally shady about how your web guy does things. His web business may be more casual or hobby-based than it is truly business oriented. He may not have heard of website contracts or hasn’t had any bad experiences which would prompt him to put the use of a contract into practice.
My advice is to have a friendly chat with your web guy, the two of you might just work this out quite amicably. He could very well be a real stand-up kinda guy who has no notions of claiming ownership of the entire website. If you’d feel more comfortable, you might ask him if he would be willing to sign an agreement with you now detailing exactly how the two of you will handle things from here forward. You may find he’s quite willing to work with you and you may actually be helping him to better his business with your discussion.
If you find that he’s not cooperative, I would do more research regarding copyright law and website ownership in your country and I’d see a lawyer who’s skilled in website law. Why won’t “just any lawyer” do? If you need a divorce you don’t hire a corporate lawyer. If you injure yourself at work you don’t hire a divorce lawyer. The same common sense applies when it comes to website law.
A private comment to the Inquirer: Thank you for the opportunity to share your story and hopefully help others who are worried about who owns their website. Additionally, I’m sorry but the answer to your other question is that this other person is no longer available. Please come back and let us all know the outcome and what steps you took to arrive at a comfortable resolution.