Your business should always enter into a comprehensive Website Development Agreement with your website designer. Here are some critical rules for helping ensure your business’s next website development agreement is as protective as possible.
Rule #1: Beware Of Third-Party Copyrights
Your website development agreement should make it clear that your web designer must create or obtain a valid license for your business to use all third-party materials, including photos, graphics, and other images. I cannot stress the importance of this precautionary measure. In fact, all contributors to the design of your website should “warrant and represent” in the agreement that their work is original and not in the public domain. This should be clearly stated in your Website Development agreement without exception.
I can assure you I have read my fair share of letters demanding that my clients immediately take down certain images used on their websites. Usually, the designer has incorporated some image they lifted somewhere else without permission. It is imperative that your designer secure the necessary rights you need to legally use their creative contribution and that those rights are transferable to you. I also have always recommended using indemnification clauses in website development agreements as well. In essence, you want the designer to agree to reimburse you and hold you harmless for any damages and all costs you may incur as a result of any copyright infringement or violation of any other right by the designer or other contributors to your site in the creation of your website.
Rule #2: Obtain Original Design Files
Always obtain the original design files of any works you have created for your business. Do not just obtain the .jpeg or .tif images of any logo or other work you have created. For example, if you have a logo created, the designer will likely use Adobe Illustrator (.ai files), or some similar application, to create the logo. Your e-book cover art, brochure or similar cover art may be created using Adobe Photoshop (.psd file). Your written agreement with the designer should establish your right to receive the original file(s) from the applications used to create the work, such as the .ai or .psd files with the original layers. The Agreement should obviously be signed before the work commences and any payments have been remitted.
Many designers will not release the original files to you and will hold onto what they create to protect themselves. Usually, this really depends upon the price. Most creators will charge much more for the full bundle of rights to whatever they create By having the original design files, any new designer (or you) can make any future changes easily without having to recreate the work. This will ultimately save you time and/or money. In the end, you want complete control over your intellectual property, and this includes obtaining all original design files.
All online entrepreneurs should understand what a ‘Work for Hire’ is and how to protect intellectual property, including website designs and each separate website element (the overall design, images, text and even website coding are all protectable elements). The rights to website template designs, graphics, logos, etc. belong to the creator and not the owner who actually paid for and directed the work to be created. Failing to understand how to properly transfer rights to creative works is a common mistake for startups.
Rule #3: Obtain Rights to Creative Works
Businesses should always enter into a comprehensive website development agreement with the website developer(s). This agreement should always establish a ‘Work for Hire’ relationship. As a safety net, the agreement should also always include a complete transfer and assignment of all ownership rights, including the copyrights, to your website template and to each separate element. Website developers may have to obtain a valid license for the website “owner” to use any third party materials, including photos, graphics, and other images. All contributors to the design of a website should “warrant and represent” that their work is original and not in the public domain.
Cease and desist letters demanding the immediate takedown of certain images used on business websites are common. Usually, the website developer has incorporated some image obtained without permission or outsourced such tasks to third-party subcontractors. It is imperative that website developers secure the necessary rights to legally use their creative contributions and that those rights are transferable through a written agreement.