More and more businesses are coming online these days, and there are now more ways to create a website than ever before.
Gone are the days when everything needed to be coded by a web developer.
Now many of the web design platforms available such as Wix, Webflow, Shopify and Squarespace allow you to build your website yourself without any coding required, and very little other technical knowledge.
And of course, there is the ever-popular WordPress, allowing you to customise your website and shape it into whatever you want it to be, whether it be a simple single-page site, a membership or learning platform or an e-commerce site.
It has never been easier to create a professional website, however, regardless of which platform you choose, there is one thing you need to consider…..who owns your website?
Who owns your website?
I recently encountered first-hand an issue involving a website I had designed and built for a client a number of years ago, in which another ‘creative’ agency clones the site and then claimed it as their own.
Here is the website in question, with the original version created by Smartfish on the Left, and the ‘claimed’ website on the Right.
While I have blocked out the footer they changed (from Smartfish to their own name), claiming they built the site, due to the agency founder threatening legal action for me outing them as website thieves, the original with the link they added can be viewed here
The site they ‘built’ looks very, very similar, doesn’t it? Clearly not a ‘creative’ or smart move in any aspect.
The web design and layout of the site were original and created by Smartfish, which was built on WordPress, (a free platform), utilising a premium theme licensed by Smartfish, and containing text content provided by both the client and Smartfish for the text, and stock images licensed by Smartfish for use in this particular web development.
So when we break down the ownership of the website design, while the client has paid for the ‘web design’ of the site (aka the labour time to create it), the WordPress platform still belongs to WordPress, the text content belongs to the client and to Smartfish under intellectual property rights, the stock images, although licensed for use, still remain the intellectual of the photographer or the stock library, and the theme property belongs to the theme’s developer.
And Smartfish technically owns the IP of the design and layout, and the creative process.
Now, the issue that arose is that another web ‘design’ agency (and I use this term loosely in their case) was asked by the client to clone the website we created and upload it onto a new domain name. This in itself doesn’t sound like a problem at first, but if the design agency’s team were educated on the common laws of intellectual property within Australia (and most of the world is no different), they would know that this would mean they would need to re-licence the images, either change all the text and the design to deem the site no-longer an infringement on the intellectual property of the original designer, or at least have written permission by the original designer to clone the site. Most designers actually won’t care, if you have their consent.
Unfortunately, none of this was done, apart from a change of the logo on the website, breaching the intellectual property laws, which are actually punishable by law.
The individuals responsible have taken control of our website by incorporating their business name into the footer tag, linking it to their website and claiming they built it! Any skilled designer would recognize the impropriety of claiming ownership of someone else’s innovative work. This action is unethical, unprofessional, and counterproductive. It seems plausible that they may be self-taught, given their behaviour. Despite attempting to have a conversation with their team, it was futile. They were unable to comprehend the gravity of their actions, and some people are simply too uneducated to learn.
To explain the scenario in simple terms, it would be like a client that owned the Mona Lisa, asking me to take a copy of it, print it on canvas for them, and then replace Leonardo’s signature with my own, claiming it was my work.
Not only would it look extremely foolish because everyone knows I can’t paint that well, but I don’t own the intellectual property of the painting. I didn’t design it, or even create the concept for it. Forging and claiming it as my work would be plain imbecilic.
So, coming back to the topic of the website, the other agency cannot legally rename, reclaim or lay ownership of the website. They have zero ownership of the site.
The client, who the website was created for, technically only ‘owns’ what content was provided by them, such as any images they may have taken themselves or text content they wrote themselves.
If they had paid for the license to use images or had a content writer provide content for their website, this license will only extend to the use of that particular website in most instances unless an extended agreement was in place.
Many stock image libraries use reverse image technology to see who is using their images without a license. Even if you have paid for the use of an image, most of the stock libraries will clearly have it in their terms that the image can only be used on one occasion. If you wish to use the same image multiple times for different projects you must register the license for additional use. It is not uncommon for a business that violates the licence agreement to be ordered to pay $200 to $6000 per image used or face legal implications. And unfortunately, if this duplicated content is on the client’s website then they are responsible for that content and the fines, not the agency that duplicates them without licensing them.
The original designer of the website holds the majority owner of the site by Intellectual Property law, with the concept and design of the site their IP, however, any licensed content used in the design or development, such as images, themes, or plugins, remain the ownership of their rightful IP owners.
And WordPress, the main platform of the website, is owned by WordPress foundation, a non-profit organisation that ensures WordPress is freely available for use by anyone, however, they still own it.
Selling a website
If you are thinking of selling your business website, these might be things worth keeping in mind. You are not actually selling the website, but more so passing on your access to use it as a business tool. And therefore if you are considering using any of the content used in your website to say create brochures or other marketing outside of the website, you really need to ensure your rights to the content extend beyond the site. The best person to ask would be the original web developer.
And also keep in mind that if you are using an integrated web platform such as Shopify, Wix or Webflow, these services all run oil their own hosting, which locks down their intellectual property even more tightly. If you are using any images, fonts or other functionality provided by their systems, you have no ownership of that content.
In short, if you are a client or another web design agency assisting the client with a WordPress website developed by someone other than yourself, providing you keep the content on the site it was licensed for use in, then you are well within your rights to change the content, the layout, the colours, and of course add to it.
However, if you are planning on duplicating a website that you didn’t create, for another business name or even domain name, or making a false claim that you built the website, then you really should consider the bigger picture first. A simple check with the original web designer will save a lot of potential legal issue and possibly even legal costs, and maybe your reputation.
Sadly it is not uncommon to see design or web agencies copy other’s work or outright lay claim to it. This is often seen from designers in the poorer countries, or by lesser educated designers that are simply clueless when it comes to understanding the design and IP process.
Making a complaint
If you believe someone, such as another design agency has infringed or laid claim to your intellectual property, known commonly as online infringement, a complaint can be lodged through a number of channels to hopefully resolve the matter.
Full details can be found on the IP Australia website at: https://www.ipaustralia.gov.au/ip-for-digital-business/grow/online-infringement
And of course, if you are looking to have a website built, ensure you use a web design agency such as Smartfish that designs websites, not one that copies and claims others site’s as their own.