The Four Most Common Mistakes Dentists Make When Hiring a Website Developer

This is a guest post from our friend Kim Grimsley, an intellectual property attorney at Oliver & Grimsley.
meet a lot of clients that fail to obtain a written agreement, or blindly sign
the form provided by the developer – and when a dispute arises, only too late
realize the problems created by that lack of diligence.  This post
addresses critical provisions in a website development agreement.
you want to make sure you will own the material and content created by the
developer.  Thus, you want a provision in the agreement (which must be in
writing) that recognizes that the developer’s work for you is considered a
“work made for hire” and you want a copyright and intellectual
property assignment as well.  These clauses ensure that, although the
developer is not your employee, you are the owner of the website materials and
intellectual property rights.  You do not want to find that your website
designer created something unique for you only to discover the same unique
layout on another website.  Many businesses are surprised to learn that in
the absence of this statement in a written agreement, an independent contractor
(in this case the website developer) typically is the owner of work they
create, and the business at most would be a licensee of the material. This means
you don’t own the work; rather, you only have permission to use it. 
you want to have a provision in the contract that states that the work on the
website is the website developer’s original work and/or that the developer has
the necessary permission/licenses from the owners to use the work on your
site.  For instance, the website developer may place photographs on your
website – you want the developer to represent that the developer has the right
to use those photographs on your website (i.e. either the developer took the
photos or it has the permission to use them).  If the developer uses
photographs owned by a third party on your website without the third party’s
permission, the third party could claim you are infringing on their copyright
by displaying their work on your website without their permission, and would
demand you cease use of the photos and may demand damages as well.  Thus,
have your website developer represent the work is original or that he has
permissions to use all work on your website.
make sure to have an indemnification provision in your agreement.  This
provision should provide that the developer will indemnify you in the event you
incur damages or a loss due to a third party claim that you are infringing
their intellectual property rights – where they claim the work on your website
is actually their material.  For example, a business thinks the graphics
on its site are original, however, it receives a cease and desist letter from a
third party alleging that its use of the works on its website without the third
party’s authorization is copyright infringement and demands damages. 
Under Copyright Law, if the third party is the owner of a registered copyright
in the work, the business as an unauthorized user could be subject to statutory
damages ranging from $700 to $30,000 for unintentional infringement, and up to
$150,000 for willful infringement. Thus, if material placed on your website by
your developer is subject to a claim or legal action for infringement, you want
your developer to indemnify you for these actions since you are relying on
their knowledge, creativity and skill in developing and designing your website.
it is important that you make sure that the developer periodically delivers all
source codes and native files to you, and that you control all passwords and
access to critical website assets, such as the domain registration.  You
want to make sure that such files and access rights cannot be withheld in the
event of a dispute.  Thus, if a dispute arises, the developer’s sole
remedy should be money damages.  You should not be prevented from
transferring the work done (to the point of a dispute) to a new developer, so
you can finish your site, and deal with the dispute separately.  

more information, please contact Kim Grimsley at Oliver & Grimsley, LLC