not had time to read the whole thread but my experiences of managing a building project over the last year have left me feeling naive believing all the stuff that is said about web design etc "you need a contract" etc etc.
as far as I know the law for a designer would be the same as anyone else doing work making or fixing something for someone.
- once an agreement has been made for a project to be undertaken for X cost, then a contract exists in UK law. In fact if they sack you before completion you can sue them, even without anything on paper.
- conversely, if agreed money is not paid then the person who did the work is entitled to come and remove it from your property. As long as they don't need to break in to gain access, they are within their legal rights. It is their work and as such their property. They could walk in through an open back door or climb through a window, or be let in by a guest. It doesn't matter. As long as they don't have to break in it's tough. There is no requirement for a grace period or a warning either.
Having had to deal with the deep end of building works and learning all this as I went along, and speaking to people who have or have run their own companies doing eg gas fitting, none of these scenarios are particularly uncommon.
Of course there are many other potential nightmare scenarios, but do you understand where I am coming from here?
- in British law an agreement is as legally binding as a written contract
- in British law the tradesperson is legally entitled to remove all of their work at any point until the bill has been paid.
Often in practice it comes down to a kind of face-off with bluffs and double bluffs. It's civil court stuff not criminal court stuff anyway, but nobody really wants to pay solicitors etc etc.
I am now feeling very naive for actually having spent money getting a solicitor to draw up a contract for web design work. As far as evidence to show a court in the event of non-payment goes, a string of emails showing the salient points would be more than adequate. One thing to be aware of, though, is that dates and time-scales should be stated. Even then there is for both parties the legal concept of "reasonable" time for completion and payment - just as the work has to be done with "reasonable" skill.
One thing that has really screwed me up is that you are supposed to give an incompetent worker the chance to fix their bad work before you sack them if they thought they were going to complete the project. This just strings things out terribly - and if someone really is incompetent, one problem just leads to another. As an employer I now know - sack first, dare them to sue.
You would probably be within your legal rights to just delete your own work from their server.
IANAL, any comments appreciated as I feel like a sucker.
Certainly it's true that any verbal or written communication that meets the requirement for an agreement/contract to be in place is legal and can be enforced. Written and formal contract language is not necessary and a verbal dialog and certainly establish a legally binding agreement.
That said, there is a reason that the traditional written contract is so important. There are degrees of enforceability that need to be considered with every agreement, and a string of emails is going to be much tougher to use in a legal dispute then a tidy, signed, contract.
A major element of a contract is the 'meeting of the minds' factor which is critical in contract law in both the US and the UK. This essentially requires both parties to have a real understand of what the agreement is before they enter in to it, and can be extended to require that both parties have essentially the same understanding of that agreement.
Something like that can get very tricky if the actual execution of the agreement wasn't very tidy, clear, documented, etc. Trying to demonstrate that another party understand ALL of the terms of the agreement even though it was being discussed in the course of a greater dialog isn't going to be as easy as it would be if you had a single document that had everything in it.
You will also have to demonstrate that the other party understood that an agreement was being established, that they compensation/consideration for that agreement was part of the execution of the agreement, and that the core terms of the agreement were clear to both parties who had the same understanding.
If you consider what a contract is actually for, how it might be used, and what the potential value of a solid contract can be in the event of a dispute, then you would probably not feel like a sucker for having a professionally written contract.
Just because a verbal or e-mail contract can constitute an agreement, that doesn't mean that it's good enough or well suited for doing business.
The original poster said they had a contract that stipulates they own the content until it is paid for. That's fine, but he then goes on to say "Under US Copyright law, as I understand it, I retain full and complete ownership of my work product until it is either fully paid for or I transfer the ownership rights to another party."
I want to point out that the majority of website development is done as what is legally called "work for hire". No, you DON'T own the copyright to your work under work-for-hire. They hired you, they made the specifications, you produced to their requirements. They own it.
Your contract is unusual in its stipulation, and I'm not sure that it's a good thing. If you own the copyright, and you reclaim the item, then there is no reason for them to pay you. They are simply declining the sale, no different than if you try on a sweater in a store and then don't buy it. A good lawyer can make the case that they have no obligation to pay. (You, on the other hand, might have an obligation to sue them to take the site down, to enforce your ownership of the design). Whereas in work for hire, it's a clear-cut labor contract dispute -- you did the work, and there is no question that you are owed the money.
The law is very peculiar.
Actually, not quite. A "work for hire" would be more like a temp, where you are considered a temporary employee of the company which hired you (often with limited to no benefits).
However, most web developers work as "independent contractors". It's essentially the same as if you order some custom monogrammed slippers. The company that makes them isn't working for you, they are creating a product for you. However, until you pay them, those slippers are legally theirs.
When running a business, you will have uncollectible accounts. It's better to just cut your losses and make a new sale with a better long term client that will pay more than 50% upfront. I wouldn't start projects for less than 50% upfront, and I've found that to be cumbersome because once the work is done, people want to skip out on payment.
The funny part is these types of clients usually have the least technical knowledge and php traps like the one stated above will work to make sure they have to pay another decent developer to fix the issue.
Creating proper terms or sales contracts would be the best idea. You could have a template made by a law professional that ensures you receive payment for your work, or you have the right not to pass on the files. You can use the same template and just fill in prices, customer name, and exact terms and conditions for the transaction. A law professional will help you cover every area extensively.
I'll have to say "Not quite" right back. Most work for hire is produced not by temporary employees but by independent contractors. The difference between monogrammed slippers and a website is that a website is a design; it is a form of intellectual property. Intellectual property law is a separate specialty in law. Slippers have value whether or not they have a monogram, and have sales potential even if they are mis-monogrammed. A website as such has no value except to the client (though a template created for a client has potential independent value, and could be argued to be the contractor's property).
Originally Posted by samanime
One of the first things you learn when studying law is that it is rarely clear-cut. A lawyer finds a theory and argues from that. You point is certainly arguable, and so is mine.
My point, though, is that it is better, legally, if the website IS work-for-hire. Then, if no payment is made, there is a clear legal path for seeking redress. Under your theory, there is no obligation to pay for the site, just as the person who ordered the slippers doesn't have to pay for them if he doesn't like them. Of course it IS more complicated than that; intellectual property can be in two places at once, while slippers cannot, but intellectual property is a slippery slope, and by making relatively minor changes in the website they could claim that it is no longer your design, it is simply inspired by your design.
All that potential confusion goes away if it is work-for-hire; payment for work-for-hire is a matter of labor law, which has centuries of rock-solid precedent.
Ownership may be emotionally satisfying, but it is a weaker argument for getting paid.
I confess, you do have some good points. I still think work-for-hire and being an independent contractor for a website is a bit different, but then again, it also depends if you consider what you do a "product" or "service" (which is a debated topic itself).