Unpaid work

Tracing copyright owners and asking permission.
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cat
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Unpaid work

Post by cat » Tue Jul 12, 2011 7:50 pm

My friend from Sweden has created a website for a small UK company.

They have verbally agreed on price and he has and e-mail asking him to go ahead with one of the proposed designs ASAP.

He obviously did that website, put it up and asked for payment. However, they suddenly changed their tune and stated that they don't like it and will not pay for it.

He tried to get some sense from them; but they were just bluntly pointing that there is nothing to discuss , they just don't like it and will not pay!

He called and e-mailed them couple of times, asking to pay, but it didn't get anywhere.

Website was created in Nov 2010 and they still have it up!

He didn't have any written contracts, just a verbal agreement, so he doesn't think he can succeed in court.

However, it is extremely unfair that someone can use his work without any payment!

Is there any chance?

As it is a website, how to prove that company is using this website for seven months now?

Does he need to take a screenshot of the webpage and verify it somehow?

He tried to call to solicitors asking to verify screenshot, but got replies that they don't do it. Is there any special service he can use, if needed at all.

He now wants to send her a formal letter asking to pay for it and some form of compensation, but worried that she will delete it and will say that he is making it up and again will get away with it.
Many thanks in advance, any help will be appreciated.

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AndyJ
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Post by AndyJ » Tue Jul 12, 2011 9:11 pm

Hi Cat,
As I am sure you are aware there is no copyright* aspect to this so I won't be able to spend a lot of time on your friend's problem.
This is a straight forward breach of contract issue. While there is no written contract as such there must be quite a few bits of written evidence such as emails which set out what the client wanted, and your friend will have sent them a quote of the price for doing the work which they must have accepted before authorising him to go ahead. That summarises the main ingredients of a contract, and certainly enough to establish his claim for payment.
The client would have the right to reject the work as not being up to a reasonable workmanlike standard (Sale of Goods Act) but clearly if they are currently using the site, they have waived that right and your friend should be entitled to payment. The specific right to reject on aesthetic grounds (as opposed to technical grounds for example if the page links didn't work or some piece of coding or a server-side application did not function) should really have been expressed at the time of making the agreement if it was to have any validity later.
In order to gather evidence that the site is in operation, he needs to find someone to witness the making of the screenshot, which should be stored on a CD along with a printed copy which the witness can sign. Ideally this should be someone with sufficient computer knowledge who can actually navigate to the site by typing in the URL themself, taking the screen shot themself and then provideing a brief statement saying who they are, quoting any relevent computer qualifications and noting the date and the actions they took. That will then independently provide evidence that the site shown in the screeshot was live on a specific date. As for any emails which your friend sends, he should set up his email client to get an automatic receipt acknowledgement from the client and also send a CC (carbon copy) of any email to an independent third party. This should ensure that at the very least the third party can attest to the email having been sent on the date and in the form claimed, and although the receipt acknowledgement does not prove it was read by the client, it would be added insurance against then denying they got the email. However it would be better to communicate by registered post the client's registered place of business, and the courts would accept this as evidence of service.

*As the designer of the site, under UK law your friend owns the copyright in the design of the site, but there is no infringement, even if the client has not paid, as the commission agreement to do the work contains an implicit licence allowing the client to use the site.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

cat
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Post by cat » Tue Jul 12, 2011 11:00 pm

Hi Andy,
Thank you for your reply,
I don't quite understand how "there is no infringement"? Surely, if he owns copyright, and didn't give his permission to use his work, it is an infringement. Agreement assumes that his work is paid for, in exchange his customer get the right to use the website, but if no payment received, then surely they have no right to use it. Am I wrong?

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Post by AndyJ » Wed Jul 13, 2011 6:32 am

Hi Cat,
Perhaps what I should have said is that it would be hard to prove infringement. When someone commissions a work which is subject to copyright, although the copyright remains with the creator unless some alternative arrangement has been agreed, there is an implied licence for the commissioner to use the work. In fact it is a little similar to buying a painting. Clearly once you have bought a painting you may view it, display it to the public, sell it, give it away, destroy it and do any number of other things, because these are the rights of the owner of the physical painting. Copyright prevents you from copying the painting and selling or giving away the copies.
In the case of the website, the client is using the original site as created by your friend. They have not copied it in order to do this.
The fact that the client has not paid as was agreed leads to contract law and not primarily to copyright law for a remedy. I agree that morally speaking the use of the site without having paid for it calls into question the validity of the implied licence, since it is also implied that the client will pay for the services supplied by your friend. I think the only other way he can exert pressure on the client to pay is to threaten to issue a take-down notice to the client's hosting service, but this is risky, and might fail either if the hosting service questions the validity of the claim (for the reasons I have outlined) or if the client can show the notice is invalid.
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cat
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Post by cat » Wed Jul 13, 2011 9:08 am

Hi Andy,
Did I understand correctly, that he needs to have a screenshot verified by an IT company, not solicitors. Would it be enough? Can he do it in Sweden or needs to be done in the UK? Many thanks in advance

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Post by AndyJ » Wed Jul 13, 2011 4:27 pm

Hi Cat,
All he needs is a witness who can say that the site is currrently live and certify that the screenshot is a true likeness of the site at the time (s)he saw it. I only suggested a computer literate person might be a good idea because they can also attest to the actions necessary to show the screenshot was of the actual site. The danger of your friend using his aunt Bessie as the witness is that it might leave her evidence open to doubt if she didn't, for instance, know the difference between a live site and a Google cache version of the site. So it's not necessary to use IT professionals, but that would be preferable to aunt Bessie. Using a solicitor is a more expensive option.
The witness can be based anywhere where they have access to the internet.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

cat
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Post by cat » Wed Jul 13, 2011 5:32 pm

Thank you again, Andy,

If lets say a witness is abroad, would it mean he/she will have to come to the UK if it gets to the court? I am just trying to figure out the less expensive route.

Many thanks in advance

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Post by AndyJ » Wed Jul 13, 2011 9:56 pm

It shouldn't be necessary for the witness to come to court unless the other side dispute the evidence that the site was still live at a certain date after the client had said they didn't like the work. Probablly the best way to hedge your bets would be to ask two separate individuals - one in Sweden and one in the UK - to provide witness statements. That way if your friend wished to use the Swedish courts to get a judgement he could have the Swedish witness available to attend court if required and have the English witness's statement as corroboration, and vice versa if he uses the UK courts. However, this really ought not to need to get to court if the client can be made to see sense, possibly through arbitration.

If it is necessary to take it to court, then the small claims court system in the UK would be the simplest and cheapest method. To take a claim on this route your friend needs to send an invoice for his work using the price agreed previously, and then if after 30 days it still hasn't been paid, issue a second, and when that is not paid, begin proceedings in a small claims court. The court can advise what arbitration/mediatiion services are available.

The one big 'but' in all this is that I am not entirely sure that an individual who is non-resident in the UK can use the UK small claims route. This was raised in another thread and even a former district judge was not able to provide the answer.

Finally, because this really is not a copyright matter, I don't want to abuse the hospitality of this site by going off-topic. I suggest that if you or your friend need more general advice on debt recovery, you should use the Citizen's Advice Bureau or small business advice centres, or their equivalents in Sweden from now on.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Post by philmwebb » Mon Jul 18, 2011 1:35 pm

I'm an IT person, not a lawyer :)

Another option to prove the presence of the website site is to look at the Waybank Machine on the Internet Archive (google it; I'm too new a user to be allowed to post URLs!) which stores cached versions of whole sites at various points. It might include the pages under dispute, but usually only if they are discoverable via search engine - i.e. linked to from other known sites.

It might be worth looking up the site on Wayback Machine to see if it's there.

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