Website Mockups - Am I protected?

[mizwizzy]

So, I’ve made the ultimate cardinal sin of agreeing to make 3 mockups for a “potential” client, yes I know… what was I thinking?! Actually, it was a referral through a friend so I said what the hell…Anyway, all that aside I’m just wondering where I stand in terms of copyright protection or indeed any protection of my work.

There was no contract signed, no nothing - only an agreement that I would go away, produce mockups and send them on to see what they think and in turn they would get back to me.

So…now I’m thinking what happens IF this client decides they’d rather go with a low budget cheapskate alternative and give them my designs to use - am I covered in any regard here?

Thinking about the legalities, if I did pursue with it, it would just end up costing me more than what the entire website probably would’ve cost in the first place, if not more, not to mention the grief associated with it!

So, what are your thoughts guys? Anyone out there with some good solid advice or perhaps has been there themselves?

All thoughts are welcome,

Thanks,
Hazel

[LiquidReflex]

It sounds like you already know the dangers of agreeing to do spec work, and especially if you agree to it, that you still have them sign an agreement. But live and learn, you may change your mind on the next one.

However, at this point, there are still a few things you can do to (try to) protect yourself. I say try because there is no guarantee that they won’t take the designs and find someone else to create them. You can surely make it more difficult for them to steal them and protect yourself if you want to pursue legal action against them if they do try.

First, since you didn’t have them sign an agreement up front, that doesn’t mean you can’t have them sign something before sending the files. Once you have the 3 ready, I would send them a basic agreement stating that the comps are ready and that they are your property until a formal agreement and payment is made for them. Any use would result in legal action. (obviously work up some legal jargon with an appropriate lawyer, I am not one).

Only after they sign and send/fax you back the agreement will you send over the comps. If they balk at that, I would say it’s a red flag and would walk away.

If they do sign it, you can also protect yourself when sending the comps over for them to look at.

The first method would be adding a watermark over the design itself. This could be a faded overlay of your logo over important areas of the design (navigation, header design, etc) or simply the terms “comp only” faded over a few spots. This will prevent them from taking the image and slicing up portions too easily.

Another method, if you do not want to put a watermark over it, would be to send the comps over at a reduced size. While it’s best to show the client a version at full size, if they are just comps and not part of a paying client I would not be so concerned with this standard. Instead, send them the comp at 2/3 the actual size. This would still allow them to get a feel for what the overall design could look like, but obviously would not be large enough to slice and utilize on a live site.

Obviously, after you provide them with the files, keep an eye on their website (especially if they decline your work and say they are going with someone else). If you do notice a design based on one of yours, you can also file a DMCA to try to get the site taken down. Just keep all the original PSD files with the creation date timestamp. That may help, otherwise you can take them to court too … but that wouldn’t be optimal.

Hopefully it works out, but I would be careful with these types of projects … they usually are more work than they’re worth. Either way, good luck!

[samanime]

In the US, at least, you have automatic copyright over anything you create. This means even if they don’t sign anything, they still can’t use them without your express permission.

A neat little trick I like to make it easy to prove you are the originator of the copyrighted files is to put them on a disc or cheap USB drive, put them in an envelope and mail it to yourself. It’d then get an official USPS time stamp on it (which is a lot easier to defend then a file with a creation date, since that can be hacked easily).

Then if you ever did have to take them to court you bring those and let the lawyer open it up. (So, obviously you’d keep them sealed). I’d send myself at least 3 different letters, just in case.

[TheRedDevil]

@samanime

A neat little trick I like to make it easy to prove you are the originator of the copyrighted files is to put them on a disc or cheap USB drive, put them in an envelope and mail it to yourself. It’d then get an official USPS time stamp on it (which is a lot easier to defend then a file with a creation date, since that can be hacked easily).

I dont believe that would actually be approved as evidence in the court system, there is nothing that is stopping me from emailing a bunch of empty envelopes to myself today, which I later can put my “data” inside before sealing it to prove I made it first.

[TexasBob]

"A neat little trick I like to make it easy to prove you are the originator of the copyrighted files is to put them on a disc or cheap USB drive, put them in an envelope and mail it to yourself. It’d then get an official USPS time stamp on it (which is a lot easier to defend then a file with a creation date, since that can be hacked easily). "

I hate to disagree, and I swear I’m disagreeing to be disagreeable, but this “poor man’s copyright registration” really doesn’t do anything that wouldn’t be accomplished by waving a dead chicken over your computer .

Really, the only thing that works here is to either have the good will of the client or to have a real contract.

My advice is to hope and pray and talk a really good game with the clients who, after all, might not even know that you could take the comps to someone else. And to not do spec work in the future.

[samanime]

You can’t mail yourself empty envelopes… that’s the whole point.

This isn’t commonly used in computer software, but it is frequently used in publishing text documents (especially before the internet).

Because it has the official USPS time stamp on it, which verifies the date. If the envelope remains sealed and untampered with, it is admissible.

A contract is always better, but for copyrighted materials, it isn’t required.

[samanime]

Here is a link about it: http://www.copyrightauthority.com/poor-mans-copyright/

They actually aren’t in favor of it, and the official method is obviously more useful.

So, anything is better than nothing, but this is the order of preference (as far as reliability):

1. Signed contract (with notary +1)
2. Official copyright (can take a long time to get)
3. “Poor man’s copyright”

[mizwizzy]

@LiquidReflex

It sounds like you already know the dangers of agreeing to do spec work, and especially if you agree to it, that you still have them sign an agreement. But live and learn, you may change your mind on the next one.

This was the first and last for me, no way will I make the same mistake twice! It seems I shall be learning the hard way in this instance!

The only reason I did actually agree to it was because I was caught off guard I guess by a friend who just produced this business client in front of me and all of a sudden I’m agreeing to this! It’s not something I’ve ever done before so I sort of feel like a fish out of water now! :injured:

@LiquidReflex

However, at this point, there are still a few things you can do to (try to) protect yourself. I say try because there is no guarantee that they won’t take the designs and find someone else to create them. You can surely make it more difficult for them to steal them and protect yourself if you want to pursue legal action against them if they do try.

First, since you didn’t have them sign an agreement up front, that doesn’t mean you can’t have them sign something before sending the files. Once you have the 3 ready, I would send them a basic agreement stating that the comps are ready and that they are your property until a formal agreement and payment is made for them. Any use would result in legal action. (obviously work up some legal jargon with an appropriate lawyer, I am not one).

Only after they sign and send/fax you back the agreement will you send over the comps. If they balk at that, I would say it’s a red flag and would walk away.

If they do sign it, you can also protect yourself when sending the comps over for them to look at.

The first method would be adding a watermark over the design itself. This could be a faded overlay of your logo over important areas of the design (navigation, header design, etc) or simply the terms “comp only” faded over a few spots. This will prevent them from taking the image and slicing up portions too easily.

Another method, if you do not want to put a watermark over it, would be to send the comps over at a reduced size. While it’s best to show the client a version at full size, if they are just comps and not part of a paying client I would not be so concerned with this standard. Instead, send them the comp at 2/3 the actual size. This would still allow them to get a feel for what the overall design could look like, but obviously would not be large enough to slice and utilize on a live site.

Obviously, after you provide them with the files, keep an eye on their website (especially if they decline your work and say they are going with someone else). If you do notice a design based on one of yours, you can also file a DMCA to try to get the site taken down. Just keep all the original PSD files with the creation date timestamp. That may help, otherwise you can take them to court too … but that wouldn’t be optimal.

Hopefully it works out, but I would be careful with these types of projects … they usually are more work than they’re worth. Either way, good luck!

See, the problem is… and wait for it, it gets a whole lot better… I’ve already sent them, without an agreement in place…well perhaps a verbal agreement is in place though as I have mentioned it loosely with regard to ownership of the designs and that if he wanted to use them or take it further to let me know! sigh, I’m too efficient for my own good, this whole friend angle has thrown me and it’s totally out of character for all of this to happen to me! I think I’ve dug my own hole here and it’s time for me to get in it

The DMCA angle is appealing to me - I have intended to keep an eye on whatever their website may be but I’m not sure if that DMCA is applicable where I am or for Irish domains, I’ll have to investigate this angle further though. Do you reckon it might be a bit cheeky to actually send an email to state that the designs are copyright even at this point? Perhaps incorporated into a follow up email?

I must say, you’re post is quite helpful and I appreciate you taking the time to write all that out. Really good advice there and thanks for the good luck, we Irish may be lucky alright…but not that lucky it seems

@samanime

In the US, at least, you have automatic copyright over anything you create. This means even if they don’t sign anything, they still can’t use them without your express permission.

A neat little trick I like to make it easy to prove you are the originator of the copyrighted files is to put them on a disc or cheap USB drive, put them in an envelope and mail it to yourself. It’d then get an official USPS time stamp on it (which is a lot easier to defend then a file with a creation date, since that can be hacked easily).

Then if you ever did have to take them to court you bring those and let the lawyer open it up. (So, obviously you’d keep them sealed). I’d send myself at least 3 different letters, just in case.

Wow, that’s interesting - not something I would’ve considered but I’m sure that there might be a handier way than that, isn’t it expensive to go that extreme? Has this method worked for you in the past? I’d be interested to hear, thank you!

@TexasBob

…
Really, the only thing that works here is to either have the good will of the client or to have a real contract.

My advice is to hope and pray and talk a really good game with the clients who, after all, might not even know that you could take the comps to someone else. And to not do spec work in the future.

See, that’s me - I go off good will and honour and I’m hoping that they will be like that, assuming if they are anything like my friend it should all be ok, this is afterall, a what IF scenario.

You’re advice is good and I feel like a kid being chastised and rightly so…as I said before, this is the first for me and the last and I won’t be caught in that trap again! It’s interesting what you said about the client not knowing about maybe getting someone else to do it, but I’m sort of 50/50 with that idea - it could go either way, but let’s hope common decency shines through

I think I may start holding a vigil each night until I actually get to see this website live! :x

[TexasBob]

Crap, I jsut read my response. I had meant to say that i’m -not- just trying to be disagreeable. I’m not a lawyer, but I have filed for copyright on people’s behalf. It takes freeking forever to get in the US.

You are totally right that a contract is the much better way of doing it. And you are also right that copyright is held even without registration.

[TexasBob]

@mizwizzy

You’re advice is good and I feel like a kid being chastised and rightly so…as I said before, this is the first for me and the last and I won’t be caught in that trap again! It’s interesting what you said about the client not knowing about maybe getting someone else to do it, but I’m sort of 50/50 with that idea - it could go either way, but let’s hope common decency shines through

I think I may start holding a vigil each night until I actually get to see this website live! :x

Sorry-- I didn’t mean to chastise. There are no big stakes. Personally, I do things like that all the time because I believe in human goodness, and most of the time I come out a-okay!

[samanime]

Luckily I’ve never had to dispute a copyright because I always have a contract in place.

From what I’ve read, it doesn’t seem to be very successful. However, “anything is better than nothing”. I wouldn’t rely on it greatly, but it does help to provide some proof.

An official registration is the best method for you now, but it takes a LONG time, and since they now have it in their possession, they could claim that it was theirs.

At this point, if they try to steal it… you may be screwed. =/

I’d say as a last ditch effort, mail yourself a couple -printed- copies in an envelope. It’ll only cost you a dollar. If it doesn’t work, you’re out a dollar. If it does work, well. =p

[mizwizzy]

@TexasBob

Sorry-- I didn’t mean to chastise. There are no big stakes. Personally, I do things like that all the time because I believe in human goodness, and most of the time I come out a-okay!

No, not at all - You’re right… bottom-line it’s a naive mistake I have made but hopefully I won’t pay too dearly for it! There are always lessons to be learned, that’s what makes us better at what we do, so I’ll be taking a few positives out of this too for the future. I appreciate your comments and I don’t view them as negative in any respect

@samanime

Luckily I’ve never had to dispute a copyright because I always have a contract in place.

Yes, luckily for you that’s good news

@samanime

…
An official registration is the best method for you now, but it takes a LONG time, and since they now have it in their possession, they could claim that it was theirs.

At this point, if they try to steal it… you may be screwed. =/

I’d say as a last ditch effort, mail yourself a couple -printed- copies in an envelope. It’ll only cost you a dollar. If it doesn’t work, you’re out a dollar. If it does work, well. =p

Hmm, what about the origin of the materials, does that come into affect? I emailed them the mockups, surely that is proof of origin with the accompanying email transcript? Maybe this is pointless? I’m bracing myself for a worse case scenario and probably having to cut my losses :sick:

[samanime]

Well, it is proof, but at the same time… it’s so easy to change. Anything digital can be changed or faked super easily (especially if it’s in your control) so it’s hard to use as proof.

Basically, at this point, your best bet would be to take all these little bits of information and hope they amount to a larger pile of proof in a potential judge’s eyes.

The question though would also be: are the potential costs worth the hassle of a court case or DMCA? If it’s only for a few hundred dollars, then you probably would just want to cut your losses.

However, cross your fingers and hope things will all go well. =)

[mizwizzy]

@samanime

Well, it is proof, but at the same time… it’s so easy to change. Anything digital can be changed or faked super easily (especially if it’s in your control) so it’s hard to use as proof.

Basically, at this point, your best bet would be to take all these little bits of information and hope they amount to a larger pile of proof in a potential judge’s eyes.

The question though would also be: are the potential costs worth the hassle of a court case or DMCA? If it’s only for a few hundred dollars, then you probably would just want to cut your losses.

However, cross your fingers and hope things will all go well. =)

Ah yes I know it’s easy to alter most things digital but I was thinking more in terms of IP’s, ISP records - things like that - the “virtual paper trail” if you will…but perhaps that’s reaching!

I understand your viewpoint and I agree, I have to be realistic here… I am prepared to cut my losses, the project was worth a lot more than a few hundred as we had already discussed the breakdown of costings.

Well …we’ll see what happens, I won’t lose sleep over it that’s for sure, but I just wanted to get a bit of feedback from you guys in the know, so it’s appreciated that you took the time to offer your expertise :tup:

[shadowbox]

@samanime

You can’t mail yourself empty envelopes… that’s the whole point.

This isn’t commonly used in computer software, but it is frequently used in publishing text documents (especially before the internet).

Because it has the official USPS time stamp on it, which verifies the date. If the envelope remains sealed and untampered with, it is admissible.

The point is that you can mail an empty, unsealed envelop to yourself. Try it - get an envelope, write your address on it, don’t seal it, mail it. Two days later it arrives with your UPS stamp on it. You now have an unopened envelope with a UPS date stamp on it. 5 years later, you can put anything you like inside, seal it and then claim you created it 5 years ago.

That’s why poor man’s copyright is useless.

As to the OP, I think it’s best to just see what happens as it’s quite likely you’ll get the job anyway - all the talk of copyright and litigation are a bit pie in the sky when you choose to give a prospect 3 designs without any clear written terms as to what they can do with them. Just chalk it up and move on.

If you really must do mock ups as a sales pitch, just make sure you make it clear to the propsect that the designs are your property unless the prosect decides to move ahead with you. Alternatively, give them the option to purchase just the mock ups. I really don’t think a signed contract is necessary - just an email from you detailing this, and an email back from them confirming they understand.

Far better IMO is to simply say ‘No problem, I’ll do three mock ups for you, that will be $$$ upfront. You can then use them however you wish, or I can make a site from them for further $$$$.’

I’m currently getting a new kitchen - the cheap and nasty places offer a ‘free’ design service, while the bespoke kitchen guys we’ve spoken to charge £100 to create the design. Guess which option gives you the better kitchen design?