Web Developers/ legal geniuses please help

[st_malachy]

If any of you could help, I would really appreciate it...

I'm consulting for a company that commissioned a firm to build them a website. The contract is a piece of crap and the development firm is also going to be hosting the web site. The problem that I'm facing is that the development firm is claiming that they will not give us access to the source code or the image files (it's a flash site sigh, i know..) they are claiming that it's industry standard to not release the source code to the client and that it is their proprietary information.

In my opinion, they have been contracted to do the work by my client. My client is paying for the website etc. therefore they should be entitled to the source code and all applicable files. If it was running on some sort of core system that was proprietary to the developer, some database or something, I wouldn't think it reasonable to ask for anything other than the site itself. In this case, however, it's a stand alone flash site. The contract doesn't specify either way... It's basically a sheet of paper 1 website for $xxx

Anyone know of any documentation anywhere that outlines industry standards and practices in this respect?

[LiquidReflex]

Since the contract doesn't state one way or the other, if you both wanted to fight it, you would basically be leaving it up to the judge's decision. However, I "believe" that the standard practice is that unless rights of the source files are transferred over the the client and written specifically in the contract that those files are given over, then they do remain the property of the designer. I specify in my contracts that source files are NOT included unless otherwise specified.

I understand that since it is a Flash website versus an HTML website, that source files seem like they should be given because you couldn't update it if you didn't have them ... but just because of that situation, it doesn't by default mean that they legally should be. Like you mentioned, if there was some sort of proprietary code, then you wouldn't assume it would be included ... the FLA files could be viewed the same way. They are proprietary on how they created the Flash, and to release those would release that information to the client.

Also, if the contract specifically says "1 website for $XXX", that also (very vaguely) shows that they are going to provide 1 website for that amount of money. It does not state 1 website and source files, only 1 website (which is the final product), so that could be viewed as fulfillment of their agreement.

Now granted, the contract really should have been more specific on both sides and things should have been clarified first ... but since it hasn't, unfortunately it's going to be a debate between the two companies, and I believe that you are on the losing side right now. You could try to contact them and see if they would be willing to provide the files at a discounted rate since the contract was not clear. But for them to provide the source files at the original contract price is very unlikely.

Unfortunately this might be a "lesson learned" experience and from this point on, double-check the contracts and make sure they state whether or not the source will be included or not before signing.

Good luck!

[c.t.c.]

I agree with LiquidReflex. Most likely, the Flash developers own what they created unless they specifically signed over ownership. However, they don't have to sell you ownership of their work. They could license it to you for use on your website. It seems to me that the only reason they wouldn't license it to you is to lock you in to their services. If that's the case, I wouldn't want anything to do with them.

[shadowbox]

Anyone know of any documentation anywhere that outlines industry standards and practices in this respect?

There isn't an industry standard beyond general 'work for hire' law, which requires that ownership is specifically transferred from creator to client (usually written into the contract). Without this, generally the web developer would theoretically own the site and all source. I doubt in reality it would be that simple though and as someone mentions, it's usually up to a judge when there is no black and white explanation of copyright.

A developer can dictate whatever terms he pleases (within confines of the law). If his business model is one that retains ownership of source code (like a photographer retains ownership of negatives), then that's his right. However he should explain this clearly in his contract and then it is up to the client to decide whether they accept those terms. There are plenty of reasons to retain elements of the development, some IMO are justified and good business sense, some are somewhat slimey and unethical - you need to decide which is which.

[Ken Sharpe]

shadowbox is correct -- if it's not in the contract, then they are correct. They own the source, and they do not have to give it to you.