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Are You Leasing Your Website?

Steve Surdez

We all remember that moment (you’re lucky if you only had one) where your slide deck failed to save or the final version of your graduate thesis could not be found. Yes, the famous line “the horror...the horror” from Conrad’s Heart of Darkness or Coppola’s Apocalypse Now likely came to mind in that moment.

But what if you discovered that the website you thought you owned and controlled was, in fact, the legal property of another? You’d be surprised how many businesses make this discovery after signing on to have their first website created by a professional firm for free or at a very low price. If it’s too good to be true, it probably is.

Often, the unfortunate business that signed away ownership only makes this discovery when they want out. They ask for their data and website files only to learn they have no legal way to get them--the firm that created the website has sole control over the files and can simply say “no” unless you pay sometimes exorbitant fees.

How do you avoid this horrifying scenario? Read the fine print and understand the ownership scenarios for the different components of your website.

Read The Fine Print. Always.

When signing a website contract with a firm--be it with Wix or GoDaddy or a smaller website design company--you MUST read the contract carefully. And then read it again. And again. And then ask questions.

How do you know what you own and don’t? You have to have it defined in the contract before signing away what you thought you owned. It’s also critical to be very up front with any website developer you interview.

As your talks progress, instigate a discussion specifically around the ownership topic. If they’re vague or if they dance around this topic--or if they throw around “ownership condition date” (which could be a set of requirements defined by the website developer that are not favorable to you)--be very careful. You’ll want to partner with a web developer that’s open to this discussion and transparent before signing anything.

In a recent blog, Andrew Kucheriavy frames how some businesses fall into this trap: “Most companies assume that they own their entire website. In reality, that is not often the case. Today’s websites are complex systems that consist of multiple components such as databases, servers, platforms, and other tools, many of which you might not be able to own. What you do own is the combination of these components, or the ‘finished assembled work’ that essentially makes up your website.”

Why “Finished Assembled Work” Is Critical To Website Intellectual Property Issues

While a website looks like a single entity, it's, in fact, an amalgamation of many components, some of which you can own and some of which you cannot. Defining ownership of website intellectual property or IP is notoriously complex and difficult to litigate. That said, if there is a phrase you need to know and understand it is the website contract term, “finished assembled work.”

When you carefully read the contract several times, look for this phrase and pay close attention to who owns the “finished assembled work.” While the definition could vary from contract to contract, whoever owns this “work” typically owns the following after the project is completed and final payment is rendered:

  • Your website’s specific HTML/CSS/Javascript files
  • The visual design of the website, including its branding and any photography you own
  • The text content

Another important question to ask is, "Who owns the website data?" You own the data but not the database or software itself, just as you should own the website’s content (visual design, branding, text, photos) but you don’t own the content management system (CMS) in many cases.

Note: When it comes to websites with CMSs, make sure that you and your team have direct access to make changes via the CMS and that the CMS is easy to use. There are cases where website firms develop proprietary CMS systems that are not user friendly and result in change fees levied by the firm. Similarly, if you don’t have access to the CMS, a firm could charge you for every text and photo change you want to make to the site you thought you controlled.

Website Components A Smaller Business Typically Doesn’t Own

Some parts of a website, and elements that make it function cannot be owned by you. In some cases, they cannot be owned by the website development firm either. A browser is an example of something that cannot be owned by either party yet is essential to the success of a website. Other parts that cannot be owned by your business are:

  • Web Server and Server Platform. For some larger companies, owning a server is possible; for companies building their first website, this is not a possibility due to cost. So, in most cases, you will not own your webserver or the server platform.
  • CMS. As noted above, you typically won’t own the content management system (again, big companies could develop their own proprietary system) but you should have access and understand how to use it.
  • Database. A smaller business won’t own the database; it will be licensed for use.
  • Source Code. Unless you and your team are its authors/creators, it’s likely you don’t own this. It’s possible that your business could own the source code eventually, but it is complicated and would have to be written into the contract in advance.
  • Domain Name. In most cases, you don’t own your domain name; rather, you’re paying for exclusive rights to use your domain name. You should obtain this right outside of the website development firm that is your partner.

Signing a website development contract needs to be done with great care whether it’s with a big box website warehouse like Wix or Squarespace or a smaller, local web development firm.

Do your due diligence, read the fine print, ask the hard questions during the interview process and know your intellectual property rights so that your business avoids finding out it doesn’t own key assets until it's too late.

If you’re an organization that’s seeking a web development partner with your best interests in mind, we can help. Illumine8 Marketing & PR has helped organizations of all sizes create, maintain and tweak their websites to maximize visits, leads and conversions. Reach out to us today. We’d love to discuss your website vision and how you see your company getting there.

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