not to beat this poor animal further, but ...

mmi — Thu, 06 Jun 2002 14:41:59 +0000

it's critical, as others have noted, to distinguish between independent contractors and employees in this context

Quote: If a hiring party that did not actually create the web site is not found to be an author--either under the work for hire doctrine or by way of joint authorship--his only hope of legally using the web site is by a transfer of a right from the copyright owner to the hiring party. Copyright vests initially in the author. Therefore, absent a subsequent agreement to the contrary, the hiring party has no ownership right in the copyright. Absent a transfer of the copyright or a license, it would be unlawful for the hiring party in our web site scenario to reproduce the work, make a derivative work, or display the copyrighted work publicly.

from the doc I posted earlier

taff — Thu, 06 Jun 2002 13:58:37 +0000

Quote: Originally posted by doublehelix
I've posted this before, in the US the CREATOR owns the copyright of the work unless it is EXPLICITELY signed over to the person doing the contracting. I worked for a client who lost thousands of dollars under the mistaked belief that, because they paid for it, they could copy it.

If the original artist is putting up a stink do a complete redesign.

Agreed and done.

doublehelix — Thu, 06 Jun 2002 13:54:13 +0000

I've posted this before, in the US the CREATOR owns the copyright of the work unless it is EXPLICITELY signed over to the person doing the contracting. I worked for a client who lost thousands of dollars under the mistaked belief that, because they paid for it, they could copy it.

If the original artist is putting up a stink do a complete redesign.

Megan — Thu, 30 May 2002 20:36:03 +0000

That's better (as far as similarity goes). Too bad you can't use that gorgeous menu she did

taff — Thu, 30 May 2002 20:18:44 +0000

ok, how's this?

http://www.sitesunseen.com/clients/redphoenix/concept2/

Suzanne — Thu, 30 May 2002 19:14:08 +0000

Just a note about who owns what -- work for hire is completely different. In work for hire, the creator owns nothing. The person hiring the work to be done owns everything. Which is why contracts are so so so so important for freelancers!

If you make something, then sell it, it's yours. If someone hires you to make something, it is work-for-hire, and you don't. Unless you have a contract stipulating that you own the copyright to the work you are doing for them. That's why people working for companies don't own the software they write while working for those companies (employees don't own rights, the company does), and why contractors working for companies can (contractors typically only work under contract).

Megan — Thu, 30 May 2002 14:35:38 +0000

Okay, I really don't understand this person. She gave up this site because she had lost interest in the field, but still needs a portfolio piece? Weird.

The way I see it, this is in her hands now and she's got two options:

1. Give up. You would have to do a completely new design of the site, not based on her original design. Your design replaces hers on the live site. She no longer has a portfolio piece.

2. She gives you the source files (assuming they still exist). You do the code and other changes without making too many alterations to her original design. The design is still hers and she still has a portfolio piece.

Technically or legally you probably have the right to do whatever you want, but ethically I think you have to consider the other designer's position as well. It seems to me that she is being unreasonable but there's not much you can do about it.

Either that or you can just go ahead with what you've got and put her name down as a credits whether she approves or not. I'm not sure about this one though... it would be different if you were directly modifying what is there (which is owned by the client).

taff — Thu, 30 May 2002 13:42:21 +0000

Quote: Originally posted by Megan
I think it would have been a better idea just to work with what was there, re-do the code, and rearrange the graphics etc. (Because you maintain the integrity of the earlier designer's work rather than copying it).

Have you looked at that code? Nothing to "redo". It is just a slice of images from Fireworks. Like I said, if I had the original layered files, I would have just tried to fix what was wrong with the original design.

Try to do a simple text edit on the original site.

Quote: Originally posted by Megan
Another idea would be to give the earlier designer credit somewhere for her original concept and ideas.

Oh, this goes without saying. I was just waiting on a name before adding a "Graphic design by..." credit to the acknowledgements (or something to this effect). This is not satisfactory apparently. My guess is that she had done the site as a portfolio piece and now doesn't have one. No amount of secondary credit or site massaging is going to change that

Megan — Thu, 30 May 2002 13:29:12 +0000

Quote: Since the client wanted to keep a fair degree of the original site's look and feel, I proceeded to create another site that drew heavily on the original design elements. I had no access to the original Fireworks files but many of the graphics came from the client anyway.

This is what I mean - not exact copies but drawing heavily on another designer's ideas. (Okay, I admit, I really don't understand how you can look at those two sites and say that they're not almost identical in terms of style, use of elements, arrangement etc. The differences are very slight IMO. I must be blind or something.)

Technically you can say that it's not a direct copy, since you didn't actually use any of the source files or anything. No, you can't copyright squares. However, you did use the same style and design elements and arrangements and the design is obviously heavily inspired by the earlier designer's work.

I think it would have been a better idea just to work with what was there, re-do the code, and rearrange the graphics etc. (Because you maintain the integrity of the earlier designer's work rather than copying it).

Another idea would be to give the earlier designer credit somewhere for her original concept and ideas.

taff — Thu, 30 May 2002 13:22:12 +0000

Wow, thanks guys. Lots of discussion.

I was frankly under the impression that unless intellectual property has been contractually transferred, it is the legal property of its creator.

I don't even want to go that far really. To me it is more of a professional, ethical issue than a legal one. I don't think you'd have to dig too far into these forums to find a thread with me whining about someone else butchering one of my designs.

Personally, I think these are quite similar. It was my goal, frankly. Had the site been designed in a more flexible manner, or had I access to all the original Fireworks files, I would have keep the design, done the requested edits, and call it maintenance.

I has no point of contact to the previous designer. She's not even doing this professionally now (if ever) and the client really doesn't want to "stir things up" She is willing to pay me again to do it over but I feel a little bad about that.

Ah well, I think I'll try to tweak it a wee bit. If that fails to satisfy me, I may just scrap it and start over.