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Need your advice on this issue I'm having.
Posted: Fri Oct 26, 2012 2:29 pm
I'm currenlty quite worried about a certain issue.
I was working on a project and hired a co-partner. This happened some moths ago.
That person drafted 2 sketches, made 1 design + logo of how the website could look. Now that person said the following things afteter some months he quit as partner:
"I will have your site taken down and I will bill you for the use of the concept and mock-ups. If I find those images that you linked me to are in use then I will bill you for them."
"the concept will cost you more if the finished product looks anything like my sketches."
Does this mean even if I don't use any css or other code from this person that they can do this?
I clearly won't use any of the images but what if something on my real site happens to be at the same spot on the desing?
My site is hosted in the USA but I'm a Belgium Citizen.
Posted: Fri Oct 26, 2012 4:57 pm
It's hard to give you firm advice because there are so many variables involved here. If your ex-partner was carrying out the design work as part of the agreement which then existed between you and was either paid at the time or was expected to gain some other material benefit such as a promise to a share in the income etc, from the site, then I think it would be implicit that you can use the work he did assuming that you continue to honour any promise concerning a share of any future profits. As he was a co-partner, even if there was no written agreement between you, there would have been some kind of understanding about what each of you would contribute and get out of running the site. The fact that he has left does not necessarily entitle him to withdraw any contribution he has already made.
I am assuming from what you wrote that there was no written agreement between you. This clearly makes things trickier, but if you can find any emails or notes which you wrote to each about how the work was to be divided up, this may assist.
I suspect that this issue is not worth either of you taking the matter to court, especially if you are located in different countries (I don't know whether this is the case of course). So the best way of sorting it out if you can't agree between yourselves, is to go to arbitration. This is normally quite cheap and helps to take the personal issues away, and lets you just discuss the actual specific issues in the dispute.
Turning to the actual material you described, under copyright law ideas alone cannot be protected by copyright, only the actual expression of the idea (either in a drawing or a written piece of text etc). On that basis if the concepts you discussed were fairly general and still required you to do a lot more development of them then that weakens any claim by your ex-partner to hold copyright in the final layout and functionality of the site. The code and scripts etc which he wrote are quite likely to attract copyright but as I explained earlier it is disputable whether he owns that copyright, or whether it is in fact owned jointly by you both (together with any other business partners you may have had at the time), because the work was done in the course of employment.
Sorry this is all quite general advice, but so much depends on exactly what your ex-partner is likely to accept and how much the work already done means to you, and whether there are areas for compromise.
Posted: Fri Oct 26, 2012 5:30 pm
He didn't get paid and indeed we didn't wrote anything down about who is responsible for what on the project.
The plan was to share profits 50/50.
But in the coming days we started to discuss how we are going to do the project and such.
The other person got more and more busy and finally not anymore interested in doing the project.
But did manage to make some graphic works, sketches of how it would look and 1 logo or two.
Still when I asked if its ok to use his contributions for the project he was against it and demanded I pay him more money then it is worth it. (My opinion of course.)
I mean I'm not going to pay him a damn cent if he finds one thing off in the finished project of my website. For that to be a reason that I broke copyright or some other unclear reason.
I personally find that as long no css or code is used of someone and all of the css and code is made by us the team of the project my old partner has no case at all to sue me or get my website taken down.
But then again I have never been in this type of situation so that is why I'm worried and trying to make sure that all my work put into this project won't go to waste when we launch and this old co-partner finds something to sue us for or take our website down for.
I only saved 4 images to my pc of what this person has made but there where some others that I cant remember he had made for the project.
But I'm not worried about that. Because he cannot claim I had something on that project based on those images as we don't have access to them.
So the question:
Do I have a risk of my site getting taken down or getting sued?
The least worst thing that could happen is that we have to change that 1 thing the ex co-partner finds on our website and we then need to change it that it doesn't reflect anymore what is found in the designs/sketches the person made.
Posted: Fri Oct 26, 2012 6:31 pm
I would very much doubt that you will be sued. That is a very expensive option and since no money is at stake (because I assume the site is not currently earning any money) the best he could expect if he did sue would be for the court to stop you using the image or whatever he complains about. That could cost him hundreds or possibly thousands in lawyer's and court fees, assuming the court agreed to accept the claim. In fact given its low value and trivial nature, I suspect a claim would be rejected on the basis of de minimis
Having the site taken down is an entirely different issue. As the site is hosted in the US the DMCA
applies here, and under that legislation a person who claims to be a copyright owner can send a take-down notice to the hosting service alleging infringement and the host is obliged to act on this unless you as the operator of the site put in a counterclaim and effectively indemnify the hosting service from liability. In reality most hosts just take a site down to avoid any hassle without checking to see if the complainant has a legal claim to copyright.
On that basis, I suggest you take pre-emptive action by alerting your hosting service that you are in dispute with your ex-partner, and asserting your claim to copyright under UK law, and that therefore they should not accept at face value any take-down notice submitted by the ex-partner. Make sure you have a full copy of the site available in case the original is taken-down, so that you can host it elsewhere and put a re-direct on your URL to the new host.
Posted: Sat Oct 27, 2012 7:45 am
About the DMCA, I contected them some days ago with the same situation I posted here on which they said:
Thank you for your detailed question.
Unfortunately DMCA . com is unable to provide legal or copyright advice due to jurisdictional restrictions. If you have any questions of a legal matter please contact a local law office or use other (online) resources you trust.
So I did what I put in bold and here I am.
I also contacted my host which has said:
If you're infringing on another persons copyright or they even think so they can file a DMCA. If it's a properly formatted DMCA we will forward it to you at which point you have two choices. You can comply and remove the infringing material or you can file a counter claim and you and the other party can resolve the copyright infringement dispute in court.
We do not get involved in whether or not what is infringement or not that is for the courts to decide.
So this person could launch a claim for 10/month (using the do it yourself toolkit) or could go and let it be down by dcma themselves but that would cost quite some and is probably not something the person will do.
The thing is
when this person launches a claim can I just not remove what is the offending material on my website instead of launching a counter claim?
I never experienced a DMCA claim (take down notice) so don't know what is shown into it when the host would forward it to me.
I don't want to waste 10 on launching a counter claim. But even if I remove what is demmanded isn't the host required to still take down my website?
Posted: Sat Oct 27, 2012 9:31 am
Looks like your hosting service deal with DMCA take-down notices in the correct way. If it happens, and you issue a counterclaim then they just leave things on the site as they are and leave it to you and the claimant to sort things out.
A take-down notice is supposed to specify exactly what the complaint is about, ie a particular image or piece of text or music. If you remove the item complained of, then that is sufficient to resolve the issue. The problem comes when the hosting service is big and can't be bothered to look into the details of each case and just closes down a complete site to cover themselves. Bear in mind a lot of take-down notices, especially those issued by the big movie and record companies, are generated by programs rather than humans, and hundreds of thousands are issued every day. Places like Youtube receive so many that they too have a fairly automated response system.
The DMCA system is supposed to have penalties for those who issue false claims, but as this article
explains, the wording of the Act is such that it is very difficult to bring a successful case against a false claim. This is clearly a weakness in the system.
Posted: Sat Oct 27, 2012 10:51 am
Thanks for your great reply.
I guess my issue has been resolved now.