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[dozer]

I am in Washington State, in case there is anything specific to this state that applies. 

I have hired a firm to design a website for me.  I failed miserably, and have no contract between the two of us discussing ownership of the design, code, and contents.  I understand that I do not 'own' it, but what usage rights are there when you pay someone to create it?  Could they simply tell me I can't use it anymore because they own it? 

Further, I am not happy with what they have done and desire to change it.  I was told that I am not allowed to modify it.  I don't want to have to pay them hourly fees each time I need a modification or change.    I wrote all the text and provided the majority of the images as well, they populated the pages with it.  If I wanted to continue from here do I have to scrap the website in its entirety and start over?  How much of a website would have to be modified from the original to be considered a unique creation?  If there are "any elements" of code that are duplicated from the original would it still be considered as owned by the original creator?  This brings questions as the operative tags in HTML, CSS, and php, obviously the ownership of those can't be attributed to the user of them. 

At what point does a compilation of code become IP?  Page formats in HTML can't be copyrighted, 2 column, one column w/ header, etc.  So the website in its entirety can't be solely the property of the creator, but what elements are protected?  Is it only the source code for their "content management system," or CMS?  Is there some sort of a logical framework to compare elements of a website to in order to make a determination of what does and what does not fall under copyright protections?

What if the source code that makes up the website is copyrighted by someone else?  Many elements of the website are blocks of freely available code from an online code store created by Google.  Where the code is actually copyrighted by the original creator whom allows it to be reused.  The designer hired for my website used blocks of this freely distributed code to create my website.  If someone creates an assembly of free code is the end creation then considered a unique creation? 

And finally, what about the "content" of the database.  The website has forms that customers enter information into, that information then populates a DB for later reference.  I would assume that the contents of this database are solely mine, the architecture and code that designed the websites and their interface is theirs.  So the question is who owns the contents of a database?

I know this is a lot of questions, but they are relevant.  Looking back, I should've researched this out further before I entered into an "oral agreement" (DON'T).  Another implication in the hypothetical would be; what if this one guy that has access to my companies information should die.  I don't have access to the information that drives the website, so I couldn't continue developing, or even repair something if I had a problem.  Websites today can make up an entire company's existence; should the creator be able to destroy your business with just a delete key?   

[dozer]

One more point: Hypothetically speaking. 

If the company ceases to exist and I have neither a copy of the data that drives my site, or access to said data, wouldn't it subsequently cause undo hardship to my company?  I would assume it reasonable that the hiring party should be able to use and alter the contracted creation however they see fit.  But NOT distribute, re-use, or adapt to other creations.  In this case, if the code was created for the registered owner of www.hypo.com that code could only be adapted or altered for use on that site and for that owner.  That code could not be distributed by the owner for use on other peoples sites or for use on other websites registered to that owner. 

This seems reasonable to me, but am I completely wrong about it? 

[artchain]

Dozer, I really sympathize with you...  this is unfortunately a common situation. 

As you already realize, your first (huge) mistake was not having a written agreement.

Your post raises a lot of good questions about what can and can't be protected by copyright, but unless the work was covered under a valid, written "work for hire" agreement, or unless the rights were transferred to you in writing, then the designer retailns the copyrights.

If the designer is uncooperative, then gaining control of your website, and the ability to operate it and modify it, is going to be hard.  You'll need to hire an attorney, and the process could be long and expensive.  To start, you should probably get an in-person consultation with an attorney.  Check your local bar association; they usually have referrals to attorneys who will provide a short consultation at a nominal fee.

However, while this is not a legal answer, you may be better off hiring a reputable designer, getting a written contract, and starting from scratch.  Could be faster and cheaper in the long run.

[Smokin]

You asked alot of good questions like artchain has stated, just unfortunately a little too late.

This whole situation sounds more like a contract dispute VS a copyright dispute at this point, but its good to know where you stand with respect to copyrights.

I understand that I do not 'own' it, but what usage rights are there when you pay someone to create it?  Could they simply tell me I can't use it anymore because they own it?

 

They can certainly stop you from using their work if you modified it in any significant way. If I painted an image and gave it to you to display with my name on it, and you decided to paint over the work to add your own ideas and process, it stops being my work and it may not be something I would want to be displayed with my name on it. However you purchased a website with the obvious intent it would be displayed for the whole world to see it. It is implied that they gave you permission to use the sight as it was designed any claim that they can stop you from displaying the work "just because" probably will not hold up in court.

Further, I am not happy with what they have done and desire to change it.  I was told that I am not allowed to modify it.  I don't want to have to pay them hourly fees each time I need a modification or change.

Its a reasonable position for both sides to adopt. On one hand, it wouldn't be wise for a webmaster to let some amateur tamper with their work with their name on it and advertise shoddy workmanship if the sight stops working properly. On the other hand its expensive to keep paying a professional. Thats why its important to hash these things before hand. You may want to look to negotiate for the rights, pay some largish fee for the ability to call it your and to own all rights to change, modify, or whatever at this point.

I wrote all the text and provided the majority of the images as well, they populated the pages with it.  If I wanted to continue from here do I have to scrap the website in its entirety and start over?  How much of a website would have to be modified from the original to be considered a unique creation?  If there are "any elements" of code that are duplicated from the original would it still be considered as owned by the original creator?  This brings questions as the operative tags in HTML, CSS, and php, obviously the ownership of those can't be attributed to the user of them.

There is alot of grey areas in you questions that can be argued for both sides, but generally speaking....... you own the rights to all the images and the individual elements within the site and you are free to use them and reuse them any way you want. The web designers however own the rights to the work they did in composing everything and putting it all together. They formatted the text, arranged it, chose colors, blah blah blah and that was their contribution to the sight. Depending on how much input you gave on how you wanted the site laid out and how you wanted it all to operate, you could even argue to be a partial owner to the copyrights. No line of code or lil idividual chunks of code is protected, but ow they are all strun together to make a unique work is. For example, there are many collages out there that use images from public domain. While each image is free for the public to use any which way they chose, the collage as a whole is considered a unique work of art and recieves protection under copyright law (Example Imagine each individual image in the collage was public domain, but how all the images are put together is not.)

At what point does a compilation of code become IP?  Page formats in HTML can't be copyrighted, 2 column, one column w/ header, etc.  So the website in its entirety can't be solely the property of the creator, but what elements are protected?  Is it only the source code for their "content management system," or CMS?  Is there some sort of a logical framework to compare elements of a website to in order to make a determination of what does and what does not fall under copyright protections?

Rather complicated and subjective question to answer. Ask yourself, how much are you copying from the original, are you copying styles, formats, ideas, and all the above, or are you using your material and using your own code and styles?

The website has forms that customers enter information into, that information then populates a DB for later reference.  I would assume that the contents of this database are solely mine, the architecture and code that designed the websites and their interface is theirs.  So the question is who owns the contents of a database?

A contract would help in this situation too. Are they providing a service to record and share the info or is the site yours and the information yours? Each side can make a convincing argument for their case and with the lack of a contract it makes it harder to judge who should get what. You may want to check with a contract lawyer, in some states some jobs require written contracts and an absence of a written contract usually favors the person how hired an independent contractor in legal disputes.

[dozer]

Thank you Smokin and Artchain for reinforcing that I am an idiot for not discussing this on the front end:)  I am a self professed idiot that learns primarily the hard way.  I find that the knowledge retention is far better if you get to experience the actual feeling of (*$&%*^* ing it up. 

I thought of an analogy here that seemed to make sense to me.  Say you buy a Ford Mustang, you can't go duplicating or reselling that Mustang, but you can use and modify it in anyway you please.  You can even throw a Chevy engine, a Daihatsu rearend, and a Peugot front clip if you so pleased (although you should be shot by all rights).  Ford, has no legal standing to prevent you from altering or modifying there consumer good, even when there name is left on it. 

So, code vs work of art?  Is it the aesthetic value of the creation, regardless of function, merit what can be protected?  Is the Ford Mustang simply not as beautifully designed as my programmers dutifully compiled Javascript, therefore the Mustang doesn't receive the same protections as a Van Gogh?  The Ford fills a purpose, as does the website, and I think the terms of use / alteration should be the same for the two.  Ford won't give you blueprints for the car and I don't think software designers should be required to give you their "source code", but you should be allowed to modify them to fit the purpose similarly.

I'm I will work it out with these guys, but shoot I hadn't even considered the implications of this stuff. 

[Smokin]

I thought of an analogy here that seemed to make sense to me.  Say you buy a Ford Mustang, you can't go duplicating or reselling that Mustang, but you can use and modify it in anyway you please.  You can even throw a Chevy engine, a Daihatsu rearend, and a Peugot front clip if you so pleased (although you should be shot by all rights).  Ford, has no legal standing to prevent you from altering or modifying there consumer good, even when there name is left on it.

Nice try, but that wouldn't fly in a court of law, though I'm sure someone can make a valiant case out of that line of thinking.

The difference between a car and a website is its utilitarian nature of a car. A car is a commercial product protected with patents while a website is more of a creative work where a creator uses skill and creative judgments to create a unique work. If for example an artist made a sculpture out of a ford, that artist will have a valid copyright of that sculpture. You cant buy the sculpture and add a spoiler to it at this point because that ford sculpture is now unique and no longer utilitarian.

On the flip side, if you purchase a "website" for private internal use (not displayed on the www), then a good argument could be made that you could modify it to fit your personal needs. For example some courts have ruled that video games can be modified legally (despite the DMCA which states otherwise) in copyright law because it essentially belongs to them. Jail-breaking phones are legal for the same reasons. But once you start distributing or displaying the modified site publicly by posting it on the web, then you are clearly in the wrong as far as copyright law goes.