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Thread: Good plain-language TOS agreement? + Can I have copyright ownership from designer?

  1. #1
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    Good plain-language TOS agreement? + Can I have copyright ownership from designer?

    Newbie here --- I guess this is the right place for legal wisdom.

    My website intention is for a blog with contributors who have similar hobbies, and they can put up music, videos, photos, and writings created by OTHERS to give some additional context regarding what those contributors themselves post in text on the blog.

    QUESTION #1 --- Can you please lead me to one or more sample/template TOS agreements which you think are good plain language solutions to such a rather low-key -- but still profit-making -- type of web entity?

    The one potentially sticky danger is having blog contributors include copyrighted items in those 4 kinds of content.

    Advice from an experience member on this or another forum did tell me that a TOS should include a clause for discouragement of posters including such copyrighted material, but it is almost certain to happen anyway.

    The other clauses would be ones that you find generally protective for such a blog, and maybe they are clauses we can call "basic" --- as part of a majority of TOS drafts.

    COMPOUND QUESTION #2 --- In my early poking around for the site plan, I ran across a guy who did not realize that many (or MOST ???) design firms have contracts giving them copyright to whatever content they create even if YOU are the client paying them to make such content. Is this true and common? Would I be laughed at if I specified a contract clause allowing ME to hold copyright? Is the design company justified in charging -- perhaps secretly -- an added amount for such a request?

    Thanks hugely for time you devote to responses !

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  3. #2
    Senior Member khenney's Avatar
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    Copyright practices are going to vary from firm to firm. Some retain the copyright and only grant you a license to use the design. Others assign the copyright to the client upon final payment, and some will even do "work for hire" where you essentially own anything they create while they're on the clock for you.

    You wouldn't be laughed at for asking to have the copyright assigned to you, but if that's not standard practice for a particular company you should expect to pay more since you're asking for more than they usually give.

    I can tell you what we do in our company just to give you a data point (but everyone handles this a little differently): Typically, we assign the copyright for the completed design to the client upon final payment. We retain the right to use the work for purposes of promotion (in our portfolio, for example). We also retain the copyright on any rejected designs, so if we created 3 different concepts for a client, they'd only get the copyright to the one that is ultimately used. If a client wants us to handle their project differently, we're usually open to other arrangements, but it does affect the price and we disclose that as a line-item on the proposal.
    Kevin Henney
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    Excellent, very concise and helpful (and IMHO a fair client policy in your company, paragraph 3).

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    Unpaid WDF Intern TheGAME1264's Avatar
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    Quote Originally Posted by khenney View Post
    I can tell you what we do in our company just to give you a data point (but everyone handles this a little differently): Typically, we assign the copyright for the completed design to the client upon final payment. We retain the right to use the work for purposes of promotion (in our portfolio, for example). We also retain the copyright on any rejected designs, so if we created 3 different concepts for a client, they'd only get the copyright to the one that is ultimately used. If a client wants us to handle their project differently, we're usually open to other arrangements, but it does affect the price and we disclose that as a line-item on the proposal.
    I'm not saying your company is necessarily wrong for doing this, but it may not be legally enforceable. In certain jurisdictions (e.g. Ontario, Canada), copyright is retained by the person commissioning the work throughout the process by which the work was commissioned. In other words, if someone from Ontario hires me to do work, that person maintains full copyright throughout the process, even if they don't pay...which is a huge issue, but this is the law, and the law is an ***. If you haven't checked into this with a lawyer, you might want to.

    Stephen: are you new to website building or new to the type of site you want to build? Do you have any development experience (and by development, I mean experience with a server-side programming language)? If not, then your legal agreement will be the least of your worries. Your biggest issue will be anticipating and/or reacting to user behavior that a ToS won't necessarily cover. Uploading .exe files. SQL injection. Trying to hack your server. Etc. and so on and so on. Once you deal with those, then you can deal with your ToS.

    Now...to answer the ToS question, they do tend to be boilerplate in general, but if you have specific issues associated with your site you'll need to deal with those and make sure you're legally covered. What you may want to consider, and I'm actually doing this myself for a site of my own that I have about 35% complete, is to purchase a prepaid legal service so that you can get a lawyer to review and draft up a boilerplate ToS for you. These guys used to offer one and I believe they still do:

    Group Legal Services Association | Advancing access to quality legal services through legal services plans and industry collaboration.
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    Senior Member khenney's Avatar
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    Quote Originally Posted by TheGAME1264 View Post
    I'm not saying your company is necessarily wrong for doing this, but it may not be legally enforceable. In certain jurisdictions (e.g. Ontario, Canada), copyright is retained by the person commissioning the work throughout the process by which the work was commissioned. In other words, if someone from Ontario hires me to do work, that person maintains full copyright throughout the process, even if they don't pay...which is a huge issue, but this is the law, and the law is an ***. If you haven't checked into this with a lawyer, you might want to.
    I can't speak for Canadian law, but in the United States (Stephen is in Virginia) copyright automatically lies with the creator of a work, unless they expressly sign it away in a contract. Our terms aren't unusual here, and plenty of lawyers have looked over our contract over the years. And something like the following generally covers those cases where a client is used to different rules: "Any dispute arising from this contractual relationship shall be governed by California law, and shall be decided solely and exclusively by State or Federal courts located in California."

    What you're describing in Ontario sounds a lot like what we'd call work-for-hire in the US. Here it only applies when there's an employer-employee relationship, or when both parties have agreed to work under those terms. Work for hire might be something Stephen could look in to if this is a major issue, but it limits the talent pool somewhat since good designer's rarely want to give away their rights, and often expect to be compensated accordingly if they do. Having clear language in the contract specifying who owns the copyright should be sufficient in most cases.

    As always - I'm not a lawyer and if this sort of thing is of vital importance, an online forum is no substitute for legal counsel. I'm just sharing my personal experience.
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    Kevin Henney
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    Unpaid WDF Intern TheGAME1264's Avatar
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    I am also not a lawyer, but I did stay at a Holiday Inn last night!

    That does sound a lot like work-for-hire, but again...I'm no expert and don't claim to be.
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    Hello again to both khenney and Game ---- I do have to sleep every now and then, so this is a bit tardy in reply: Another huge "Thank you" for the newest advice !

    And adding info regarding my depth of experience -- which Game touched on: yes, I am a 100% no-experience newbie, with a career in commercial photography and graphic design, so at least the basic web pages can be done by me, although tweaking for visual interest, some amusing gifs, and layout effectiveness will likely still be required by the web developer I eventually hire.

    YOU HAVE ANTICIPATED MY NEXT QUESTION -- in my mind even before reading your caution on "anticipating and/or reacting to user behavior". In other words, dealing with the inevitable throngs of bi-pedal pestilence who consider creating internet havoc as their chief motivator during life on this wacky planet.

    NOW TO THE POINT: At the risk of repetition, my planned enterprise with be a blog for hobbyists, turning a profit from adverts. I want the blog to be suitable for all ages --- as the cliché goes -- and therefore free of adult-oriented stuff, an endless supply of which is available to anyone these days.

    So, in the 24/7 world of web activity, even though my blog's language will be only English, there are oodles of English speaking site-wreckers across all time zones. I personally, at age 67, do not have the stamina or mindset to do that admin gatekeeper function --- I would go insane within a few hours.

    HOW & WHERE DOES ONE FIND ADMINS FOR CEASELESS VIGILANCE ? Are there for-fee websites devoted to, and staking reputations on, giving me names and email addresses of such high quality potential people ? If either of you have had headache-causing problems regarding exactly that task, and have found resources, please discuss here. And, of course, any other readers of this post are very welcome to chime in with your own tribulations and triumphs.

    I have some obligations from now (10 AM Eastern US) for the next 8 hours or thereabouts, and so will check back in this evening. Adios until then.
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    Unpaid WDF Intern TheGAME1264's Avatar
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    As a mod on this forum, I haven't seen anything like that myself. I don't expect to any time soon, either. It's a good idea, but the problem is that any company offering it would need to staff it and pay them such that the service could be offered at a reasonable rate to customers, and I don't see that happening unless it's offshored (which creates all kinds of problems in and of itself). By the way, mods on here do it for free, as is the case on most forum/discussion style sites. You'd likely have the same sort of thing with your idea.

    For the project I'm working on, I plan on solving this through my users, and mine is a "hobby" site of sorts as well. Mind you, I can't go into more detail because 1) it's not built yet and 2) to the best of my knowledge, no one has done what I'm doing quite the way I'm doing it.
    If I've helped you out in any way, please pay it forward. My wife and I are walking for Autism Speaks. Please donate, and thanks.

    If someone helped you out, be sure to "Like" their post and/or help them in kind. The "Like" link is on the bottom right of each post, beside the "Share" link.

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    O.P. here ---- Thank you, Game, for the new input.

    I will be off this forum for several days to take care of more nuts and bolts in my intended web project build. Adios for a while . . .

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    Unpaid WDF Intern TheGAME1264's Avatar
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    Cool stuff. Keep us posted!
    If I've helped you out in any way, please pay it forward. My wife and I are walking for Autism Speaks. Please donate, and thanks.

    If someone helped you out, be sure to "Like" their post and/or help them in kind. The "Like" link is on the bottom right of each post, beside the "Share" link.

    My stuff (well, some of it): My bowling alley site | Canadian Postal Code Info (beta)


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