Hi Wise Ones,
When I develop sites, I'm typically a subcontractor, so I don't think about this topic much. Maybe I should. I tend to think that the liability for a site simply lies with the client who induced it and paid for it to be done. But I'd like to hear your opinions.
A firm hired me to develop their site with a particular CMS, do all the CSS, install and configure plug-ins, and so on, pretty much develop the site soup-to-nuts, except for the initial simple template that a Photoshop ace had made for them. In the header was imagery that was a blatantly obvious trademark violation, and best of all, the company in question is one of the most litigious in the industry. I told them so, and they were undaunted.
I consider it my professional responsibility to warn clients when they're doing something illegal, technically unfeasible, highly impractical, fostering poor usability, or even just plain bad taste. I will also fire myself when I clearly am not well-matched for the job. Of course, if I eliminated doing things that sucked, I would have a lot less work. I just won't put it in my portfolio. So clients find me annoying when they're used to happy-talk BS and don't want to hear naysayers. As often as not they ignore my advice, but at least I give them the head's up.
Certainly a developer would be liable if they signed a contract to do some work, were paid, and didn't complete it. But my question is essentially, does the developer bear any responsibility for the site content?
Have any of you run into legal issues after making a site? And were you held responsible, or was the client on the hook for the whole thing? I'd enjoy hearing some war stories.
You can technically be held
You can technically be held fully liable.
Also depends on where you live. I'm from USA and worked with one of the nation's (if not the world's) largest domain name provider. Think of one of the first domain name providers ever and you might be right.
Anyway, they also offer web design, which is the department I used to work in.
While there if we had any content or imagery that was "questionable" we were required to have the client send us a fax stating explicitly that had received authorization to use said content or imagery and they held full responsibility for copyright or any infringement thereof.
As a now self employed developer, I feel it is my duty to be the professional. This is what they hired me for. I bring all this information to light for the customer. That this brand/image/content is most likely copyrighted and could bring possible litigation is used improperly. I help shed light on how they can receive proper usage rights as well as the lines they should use the copyright notice in the footer (ie: All brands and logos are copyright of their rightful owners) kind of thing.
I also have the client sign a waiver that states that myself, nor my company, will be held liable for any misuse, damages, etc etc, if the client is ever sued for using the imagery without proper authorization.
If after all this, they still decide to use the content/imagery/brand/logos, etc, I will charge for any of my time that I have to spend to remove the infringing material if it becomes an issue.
As the professional it is your job to make sure the client fully understands the issues they might possibly cause themselves. But it is also your duty to protect yourself as much as possible from any possible litigation.
Excellent response Deuce,
Excellent response Deuce, thanks for that. My suspicions may have been close to the mark. I also liked your enigmatic, yet revealing description of your old employer, nudge nudge, wink wink. If it's them, it's someone whom I have slagged, and in rare occasions have praised, on my blog, twice inducing staff members to contact me about how they can fix things.
Instead of simply doing an email warning, maybe I should make out some kind of form to fill out, or at least a boilerplate email that they can "sign" or the like. Also, though I sometimes smell trouble, I am only partly informed on the positive steps you take to remedy them, short of simple removal; I'd probably best read up on that.
Say, it sounds to me as though you are working directly with the client. Is that correct? I am rarely in this situation - normally I am one step further down the chain: Client hires firm, firm hires me as a contractor. While this has some drawbacks, it does save me from dealing directly with the bozos, er, I mean, valuable clients. Any thoughts on that fine distinction as to whether I'd be liable? Isn't signing all my code "Eric Meyer" enough?
I do the same thing. I work
I do the same thing. I work with firms and agencies, who have their own collection of clients.
I very rarely work directly with a client. But doing it the way I do it, and obviously you, it happens to make life easier. You only really need to inform (read: train) your clients once or twice and they will let their clients know how it works.
Flamenco I praise your stance
Flamenco I praise your stance outlined in the OP
You must ensure you get a basic set of T&C signed off and that clearly state that you are not responsible for site content further paragraph clearly stating that all imagery supplied by the client is the clients to use and has all necessary licences for use where applicable.
Also ensure some form of liability disclaimer.
It's pretty important to cover certain aspects of the arrangement, doesn't have to be hugely complex or long winded or even drawn up by a lawyer, as long as statements are kept plain and simple and absolutely clear, not open to misinterpretation.
One thing to be wary off and possibly not covered in douces comments is that to be careful of knowingly doing work on a graphic that is trademarked/copyrighted even if you have had the client sign a declaration that they are allowed to, as this may not hold up it could be considered that you should have checked the nature of the graphic first regardless. Editing and creating a new graphic from an existing one does tend to mean that you hold the rights on the newly created graphic until such time as you sign over the rights to the client, that could be used against you. In short I would not touch an image that I suspected to be protected with a view to editing it in some way.