How to I make sure I am protected.

This is going to be my first site.

I am starting a Niche topic ( non adult content ) tube site, I am having a local web designer make it for me with a custom script.

My question is, what can I make this web designer sign to insure that I am 100% protected and my concept and everything he builds for me is 100% confidential. I want to make sure he knows that if he duplicated my site, or shares any of my content with another client or even tries to go into the same type of site as mine, I can legally go after him.

I do not have a lawyer, does anyone have any ideas for a newbie?

Thank you for your help!

 

Unless your design is NOTHING LIKE anything that currently exists, you'll be hard-pressed to actually enforce a non-compete. I would give the designer a confidentiality/non-compete agreement that lists out the completely proprietary aspects of your site that he or she can not copy--but you can't enforce any kind of agreement that says he or she can never "create a site with video on it" because that is not a proprietary concept.

 

Keep in mind that if you choose to work with a freelancer because it's a cheaper option, you often can't get them to sign non-competes. It's their right to work for multiple clients -- in fact it's how they run their business. If you want them exclusively, put them on salary. Keep in mind that people often specialize in certain types of projects. Those people are paid more usually because of that specialized experience, and they certainly aren't going to agree to stop working for other people in their specialty area. So if they're serious about their own business, they won't sign a non-compete. They'd have to be either new or a complete sucker.

Your best bet is to stick with a nondisclosure agreement so they can't discuss your project. Know though that not all freelancers will sign those either, as that means they can't use your project in their portfolio (which is important to an independent professional). An option if you come against that objection is to put a time limit on it, where it can be listed in their portfolio months after launch.

Keep in mind that if they use any code that's already been created or made available available and not custom (and let's be frank -- there's little chance everything in the code will really be unique), then you don't own any copyright to that code and can't stop them from using bits and pieces of it later. What you would own is a copyright on the full code compilation written up in a certain way for your site, and anything that is unique - that's all. But even that's only true in some cases, such as through a work for hire agreement. Don't assume you have full rights unless you have it in writing. Writers, designers, coders, etc. do reserve the right to sell "first rights" or other types of rights in order to resell that content / code in other ways later. So if you need something specific, get it in writing.

 

You can't protect your concept (as a matter of law).

And you can't protect your content (as a matter of practical reality).

 

Don't worry too much about this... until the designer provides a document to sign noting that he retains copyrght of the design - it is yours.

As the commissioning officer of the project you are the author of the design with a valid claim of copyright - unless otherwise specified.

Once you have your website finalized with your copy added (within 3 months of the original design) register your copyright...

1. check the field marked "work made for hire"
2. place the complete site on a dvd
3. send that with your $35 to the copyright office

In four months you'll have your certificate of copyright.

That said, you cannot "protect" your commissioned design without going to court... so if you find that the designer has recommissioned your design to someone else - while you could implement dmca actions - that doesn't necessarily to any thing other than protect 3rd party online providers from you suing them.

If the designer counterclaims your only recourse is a court of law.

THis however is more focus on the content of the website not the general framework of menus and graphical alignments.

I'll also note: "code" is as stated above is generally considered 'fair use'... and most design firms use stock photgraphy for backgropund imagery which is is also fair use or their own photographs and they own the copyright of the original image - where they can make derivative works (such as that used in a web site design)... that said: back to that designer's document that needs signing... you need all the specifics spelled out - so while you are considered the author of the project and have a right claim to copyright for that project - without more details you are barking up the wrong tree.

 

The Work for hire issue does depend on other things, such as:

1. Where the designer (and buyer) lives.

2. What policies and terms are laid out on their own site if you found them there and contacted them through it under those terms (for example, if they clearly advertise that not all code will be unique, and some aspects may be used in other projects, then that's what the buyer agrees to).

3. Any email or other written correspondence where those issues may be mentioned, stating that things aren't completely unique or the sole property of the buyer (other than in the compilation they actually receive).

4. Whether or not any unions are involved (I don't think there's a large union for designers, but for writers who are WGA members for example, their rights may be expanded through union rules as their buyers have to agree to the union's terms).

5. If they're hiring someone to repurpose / rewrite, etc. someone else's work (such as creating a clone site), they won't own the copyright (neither would the designer), as you can't claim copyright on the derivative work of someone else without their permission (in the US at least).

Never simply assume you own something. If you want to be 100% sure, have it all laid out in writing. While you may be able to make a case for it being a work for hire if you choose to take it to court later (showing emails, letters, or other documentation that the term was agreed to), it does actually have to be in writing when you're talking about independent contractors (in the US) as per the rules laid out in the copyright act. Not only does it have to be in writing, but the work as to fall into one of a few categories (pasted below for you from Copyright.gov -- personally, I think you'd be hard-pressed to say a video site's design falls under any of them simply and clearly -- always best to get it in writing if there's any doubt whatsoever).

[source]

 

While it is agreed that written contracts spell out the terms of the work required ... they rarely cover copyright... and the next two paragraphs of the same document you quoted http://www.copyright.gov/circs/circ09.pdf

It's worth noting that any written agreement to the contrary signed by both parties - should require the copyright holder to register their copyright and cover all legal expenses to preserve that copyright on behalf of other person for whom the work was prepared since only the copyright holder can file court action on infringements.

Obviously, this is the reason why the author and copyright initially belongs to the person flipping the bill for the creation... because afterthefact - "I'm up shit creek if you decide you don't wish to preserve your rights".

 

Those two paragraphs though only apply to works made for hire. What I quoted is what specifically constitutes a "work for hire" under copyright law in the US when dealing with independent contractors. If it doesn't meet the requirements, it's not a work made for hire, and the authorship / copyright issues specifically related to works for hire therefore cannot be applied to them.

This is the most important line regarding independent contractors:

Therefore if there's no written agreement, it can't be classified as a work made for hire (again talking specifically about work from independent contractors), and then other terms laid out for works made for hire wouldn't apply to it. That's why both of the paragraphs you quoted are clarified up front with "If a work is a work made for hire...." It has to meet the terms of being a work made for hire before those authorship and copyright rules would apply to it.

 

A written agreement as to "I hire you to create this specific item for me for some commissioning price and we agree on the details of the work to be created and signed a contract to that effect"... meets that requirements.

But nowhere does the contract need to address copyright to be classed a work made for hire.

The agreement only needs to prove a relationship existed to produce the work for me and I hire you to do it...

But yes it only applies in the US.

 

I wasn't trying to imply that it had to mention copyright -- only that a written agreement had to exist for work for hire rules to apply here, and that it would need to be made clear in the agreement. Hence saying to a designer, "can you make me a site that does x, y, and z?" and paying them does not necessarily mean the buyer owns all rights unless that work for hire agreement was formalized in writing in some way. Otherwise, the contractor would be well within their rights to re-use information (such as code they've created for several customized video-oriented sites), and the buyer could not claim copyright to that or easily deny them the right to use that information for similar projects in the future. I don't think we're saying anything terribly different. It all comes down to "get it in writing."

 

...and I would argue that a verbal agreement is legally binding... and there is much case law to support...

...I would also argument that that exact paragraph:

...doesn't state anything about signatures... and merely an invoice and a VISA statement, canceled check, or money order (a paper trail) provides the spirit of that above paragraph.

In fact, Circulation 09 Works Made for Hire Under the 1976 Copyright Act itself is merely an "INTREPRETATION" of the law and not the law itself.

That's very, very explicit - unless doesn't imply I need any written document to excerpt my rights... you need a written document to excerpt your rights.

No where in "the law" does it state a work made for hire isn't a work made for hire without signatures of both parties... it only states that if the independent contractor wishes contrary rights to the above it must be stupulated in writing and signed by both parties.

 

Yet again, it starts with "in the case of works made for hire," so unless it meets the requirements first for being a work made for hire, that does not apply. What it says before any stipulations of what a writer must do (if they want to retain any right whilewhile it's a work made for hire) is that the work for hire agreement must not only be represented in writing, but that the written agreement must "specify" that it's a work for hire (which is all I said - unless I missed it, I didn't say anything about signatures -- only that they should formalize the agreement beyond "can you make xyz for me?" when terms elsewhere such as on the designers site, make it clear they won't receive the copyright to all aspects of the project). Therefore, as far as I'm concerned, it would be incredibly foolish to suggest that anyone not get a written agreement to that affect to protect their interests when it's clear they want a work for hire relationship (and that's still only applicable if the work falls under one of the categories I noted above), and to instead just assume they're automatically protected.

At this point, I'm just going to unsubscribe, as the discussion isn't going to do much good for the OP anymore. They have the information and the sources (if they're even in the US and it applies to them, which they haven't come back to say), and they're perfectly capable of sorting it out for themselves and deciding how much of a risk they feel like taking.

 

You can protect the content, desing and the logos under copyright and trademark act.
But, you can not protect the idea.

 

http://www.chillingeffects.org/fairuse/faq.cgi#QID836

 

I would use a non-disclosure agreement. They are typically used in the startup venture capital world. A non-compete implies an employer-employee relationship.

If you have already commissioned the work you are too late.