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[madchaos]

In a recent business deal I designed a website for a client.  It was free but in a contract we both signed, he agreed to my right to promote my work and to seek attribution for the work derived by me.

The contract stated that attribution would be in the form of a hyperlink in the footer of the homepage.

Some months later, the client has taken upon himself to remove the attribution. His reasons were that he deems he changed enough elements on the website to justify that the terms of the contract were void. I took the view that the terms of the contract were final, that many graphic designs and code designs still remained on his website and this was a breach of copyright.

I do not like how he can gain monetary advantage from my designs and not compensate me with some form of attribution.

I would like to take this further, in Australia, to a legal process.

Can anyone offer information on how and in which legal forum I can dispute this case.

I am unsure whether IP is handled by a tribunal, small claims court or whether an IP solicitor is required to send threatening letters on my behalf.  I do however need to take some action to protect my rights and my intellectual property.

[MYK]

Just to let you know, I've only seen one Australian post here, and I haven't seen him post anything recently.

[artchain]

madchaos -

As MYK says, you're unlikely to find advice here on Australian legal processes. 

In the US, local bar associations usually have referrals to attorneys who will provide free or very inexpensive consultations...  you can probably find something similar in Australia.

[Kaitlin]

Am also American, so this is pure guesswork here, but a few other thoughts occur to me as avenues for ferreting out further info if you want to inform yourself a bit before hiring someone:

-See if a solicitor would take a phone call from you and be willing to have a short chat to just steer you in the right direction without your necessarily hiring him/her. 
-If there's a university with a faculty of law near you, try a call to a professor teaching copyright and see if he/she is willing to clue you in where to start the process--and let you know whether this would be purely a contract case or if copyright itself would come into play (as I expect it would).  (And make it clear that you don't want to take up a lot of their time, but just want to find out where to get some basic information.)
-See if any of the Australian IP firms have websites with general info that might be of help. 

Hieros gamos has a directory of Australian law firms at http://www.hg.org/firms-australia.html.  (Law schools are also listed on that page.)

---

(PS  Having a solicitor draft any letter you send the other party would probably be money well spent.  What is said in correspondence between you and the other party might be brought into the litigation, if it comes to that.  So knowledge of the law would be important in determining what to say and what not to say since you not only want to try to encourage the other party to comply without litigation, but also to try to elicit helpful admissions from the website owner which could bolster your case if you do need to litigate--and avoid any inadvertent misstatements of your own which could hurt your case.)

[Kaitlin]

And some further musings...some based on common law which we may share, others just the ramblings of a tired legal mind, which ramblings may or may not have relevance.  And note: copyright law is not my strong point.

(BUT FIRST A CAVEAT:  I pose some questions to think about here.  DO NOT ANSWER THEM IN THE FORUM.  If you are thinking about litigation you don't want to put your facts out in public.  Even with a pseudonym, the other party may figure out it's you and a public discussion could undermine your case.)
 
1) Consideration:  The contract is valid and not an empty one, generally, if you can tell who the parties are, what the subject of the contract is, the essential terms, and you have consideration: that is, a quid pro quo.  Their quid is your work on the website.  Your pro quo is their promising to use the hyperlink. 

2)  Ambiguities:  Just who drafted the contract may be important if there are ambiguities, and it sounds like there probably are. 
If you both worked on drafting it, then the court/tribunal may just try to see what clues are within the document to show what was the intent of the parties.  If only one of the parties drafted the document, then it may be that in Australia, as here, the ambiguity will be construed against the drafter.  (It's like when moms have one child cut the treat in "half" but the other child gets to choose the "bigger half".)

3) Things which could be important (particularly if there would be a question as to whether the matter would be treated purely as a contract matter or whether copyright law might govern what could or could not be contracted) might include:
-any indication in the contract that you were keeping your copyright in what you created and only granting him permission (i.e. licensing him) to use your creations so long as he provided the prescribed hyperlink;
-what sort of attribution the contract required through the hyperlink: was a particular form specified and did that form include a reference to copyright?
-what terms were used to describe the web-page--was it treated as a single creative unit? did it vaguely reference your "work"?  What might a third party think was covered?
-What sort of information is on the hyperlinked page?
-did the contract make any reference to what the remedy would be in the event of breach? 
 

My guess is that if Australian copyright law were to be that the creator of a work retains copyright unless he/she affirmatively and specifically transfers that right, then 1) if his alterations would be considered "derivative" works--requiring your permission or 2) even if his revisions weren't derivative, if the separate unaltered parts of your website would remain as under your copyright, in those cases you might well have a copyright case against the website owner if the only legal way he could display your work was under the "license" you granted by the contract -- and you can show that contract to be materially breached by his failure to continue to show the hyperlink. 

Hmmm.  Here's another thought:

It was free but in a contract we both signed, he agreed to my right to promote my work and to seek attribution for the work derived by me. 
The contract stated that attribution would be in the form of a hyperlink in the footer of the homepage.

Words are important in contract disputes.  You say he agreed to your "right to promote" your work and "to seek attribution" for the work...  If that is the language in the document, that could be a killer.  Saying you have a right to promote your work is different from saying he has the duty to promote your work on the web-page.  Similarly your "right...to seek attribution" could be empty words--what you want is to have the right to have attribution on the web-page (and him the concomitant duty to provide the attribution), not merely your right to "seek" it.  Also, at least in the US, you wouldn't want to use the word "derived" as you have above.  "Derive" has a specific meaning in the context of copyright ("derivative works") and so "created by me" would be preferable.


Anyway, it's past bedtime here so I'll leave you with those thoughts....  (The tireder I get the more I ramble...)

[madchaos]

Thanks Kaitlin and others for the thorough response

I will look into a faculty of law in our state university and follow your guidelines on how to be polite about obtaining information.  Thanks for those tips.

To your questions...

1) Consideration:  The contract is valid and not an empty one, generally, if you can tell who the parties are, what the subject of the contract is, the essential terms, and you have consideration: that is, a quid pro quo.  Their quid is your work on the website.  Your pro quo is their promising to use the hyperlink.

The contract is a formal contract and quid pro quo was established, in which, the client authorized the service provider to undertake development of the new wesbite.  Under the "design credit" heading we have

The client agrees:

• That the contractor may put a by-line on the bottom of the homepage index.html establishing design and development credit.
• The website created for the client may be included in the contractor’s portfolio or any other promotional material.

You said words are important in contract disputes.  Based on what you said...

what you want is to have the right to have attribution on the web-page (and him the concomitant duty to provide the attribution), not merely your right to "seek" it.

I think how the contract is worded saying may put could pose a problem.

In relation to ambiguities, I drafted the contract and it is fair to say there may be some ambiguity as to, for example, the duration in which the attribution should remain on the website (not specified assumes indefinite). 

I do think copyright will be relevant only for the reason the website was created free of charge with its only conditions being attribution, and for this reason, any breach of the terms of the contract, in my view, allows the website proprietor to gain monetary advantage from these designs which were my creation and derived from me.

In regards to the third question on importance, the copyright of the website was written as such.

• Upon delivery of the website, the client is granted unlimited right to use, modify and redistribute, or have used, modified and redistributed on the client’s behalf the specified product.  The contractor retains the right to any techniques: source code or graphic devices used in developing the product. The contractor retains the right to retain copies of the product as examples of their work and to display graphics of the website for use in demonstrations.

The whole intention of this exercise is to have the website proprietor remove the offending material.  I sought to do this via a "DMCA" http://rising.blackstar.com/how-to-send-a-dmca-takedown-notice.html but that's American-based law and his servers and DNS reside in Australia.

[Kaitlin]

(BUT FIRST A CAVEAT:  I pose some questions to think about here.  DO NOT ANSWER THEM IN THE FORUM.  If you are thinking about litigation you don't want to put your facts out in public.  Even with a pseudonym, the other party may figure out it's you and a public discussion could undermine your case.)

To your questions...

Do be careful that the amount of contract language revealed does not give away your identity.

That being said...
You mention a concern that "how the contract is worded saying may put could pose a problem."
I wouldn't consider that "option" phrasing a problem, since it is the contractor's (your) option to exercise or not.  So it sounds like that does give you the right to put in a by-line.

In case your adversary can find this online, I won't say any more here but will add a few additional thoughts in a PM to you.