As a CEO, marketing director, or business owner you've probably had an agency build a website for your company at some point. Were you told that you "owned" that website?
Ben has worked with large corporations like IBM and Staples and has some very interesting and useful insights on this topics. Let's take a look.
Michael: Hello everyone, Michael Reynolds here with SpinWeb. Welcome to The Digital Exec. Topic for today: "Who Really Owns My Website?" I'm here with Ben Bassi from CommonPlaces. Ben, how are you?
Ben: Great. Thanks Michael!
Michael: Awesome! So glad you're here. Ben, you are CEO of CommonPlaces, which is a digital agency in the Boston area, correct?
Ben: Correct. We've been around about 10 years, actually 15 years if you count we were in Boston for 5 years and then moved up North of the city and we've been doing a web development, digital marketing, inbound marketing for a number of years, mainly in the open source arena is where most of our projects are, a lot of web apps and different things like that.
Michael: Awesome! Great! You and I met at the Digital Mastermind group, which is of course, a group for digital agency owners to get together and try to become more awesome by sharing ideas so I'm really glad we were able to connect there. Also, we saw each at the the HubSpot Inbound Conference earlier this year.
Ben: That’s right.
Michael: That was a good time as well. You've got a good company and glad to see you’re enjoying success. Today's topic is interesting. I was talking to you at our recent meet up about who owns your website. You and I both have companies that build websites for our clients, and I think a lot of us in the industry, myself included, have this phrase where we say things like, "Yeah. You own your website." Whoever we're working with, we tell them that they own it. We just leave it like that. We leave it vague because we kind of expect that.
You were telling me recently that, that's not quite the case. I'd like to hear a little more about that. First of all, by the way, disclaimer, you and I are not attorneys. You're not an attorney, right? I'm assuming you're not.
Ben: No, I'm not.
Michael: So we're not offering legal advice :)
Ben: There you go :)
Michael: I know you have worked with attorneys to help you through this concept and help you write your agreements to be correct in this respect. I know you have worked with attorneys on this. I'm really interested to hear your perspective. When a company builds a website for you, let's say an agency like SpinWeb or CommonPlaces builds a website for an organization, who really does own that website or is that a more complex question than I'm making it?
Ben: It's more complex than what you're making it. The thing is, my background goes all the way back through software development where copyright, ownership derivative works, all of these things were very important and a lot of people forget that a website really is a software application.
You have to be very very careful. I'm going to start off by telling you a story. About 10 years ago, I had a developer that was working for me, and we have very strict policies at CommonPlaces in terms of copyright and ownership and everything else as you well know, but this a young developer, who saw a great picture on the web, thought the picture was just magnificent for this one client, and instead of going into the database and buying it, you know being young, she took this great picture and put it on the website.
About three or four years later, the owner of that picture came after the web, the company that had the website, and this was copyrighted material and shut them down and wanted, demanded, $10,000 or $20,000, some enormous amount of money for the rights of that picture and its usage. Obviously, we made another picture for them, everything worked out, but people every day take things on the web and they think they can just own them.
You have to be very careful about copyright. What we do in my company is we really break things down into three categories, Michael, Okay? The first category is what we call "Client Material." That's as a client you own that material that's copyrighted to you.
Michael: That's your logo, text, or logo, content, text, things like that?
Ben: Things that you can trademark, copyright, that you bring into the relationship and actually we put this in our contract. You're bringing that into the relationship. You have ownership over that. You have ownership coming in, you have ownership going out, that's your material. That's fine.
Then we have a second category called "Website Materials." What these materials are materials that CommonPLaces makes for you such as logos and things that would be the same as client materials but we're making them for you. The reason we do that, the reason we think that is we have to give clients the indemnification that everything we give them we actually own, right? Because if you were buying a website, you wouldn't want someone, you wouldn't want to buy stolen goods, right?
You have to be very careful here, so we create the second category and in this category it works for higher arrangement and we go under the U.S. Copyright Act, legally that says we're creating this. It's a works for hire. You are the only person I'm loaning this and these are typically things like content and images, and so on, that are unique to the client. The third category, we call the "CommonPLaces materials." This is anything my team develops, anything that's source code based, any algorithms, any code, and what we do with this is we say, "We own this." Also we indemnify the client that we have rights to this code. Now, I don't know how familiar you are with open source but there's a Derivative Works Act. What Derivation Works Acts are is that if you take something that's out in public domain and change it you have to give rights to the public domain, for anything you change.
Michael: Right. I'm familiar with that.
Ben: There's been, there's been a lot of interesting cases where people will take themes and designs out of open source websites and modify them and its big question is "Who owns them?" By breaking everything up into this ownership category and saying that everything we develop we own and we give you a perpetual license for use in this code area so you're free and clear, and we do that with every client.
The reason we do, we wouldn't want a client we built something two years ago say, "Hey, that algorithm in that website, you built that under a works-for-hire when you were building our website therefore I own it." Therefore, that person has to pay me royalties.
Just on the side, how about Apple, Samsung and all these companies fighting all the time?
Michael: Yeah. I know!
Ben: Those are huge cases and they're talking about user interface and things like that. You don't want to get into a situation where one client goes in and stops the operation of another client. By saying that we own it all and that we give you a license to it and that we ensure that we can use it freely, you have no problems.
The last fact is then in the open source community. We have separated what makes you special, and this is true with licensed products as well. By the way, you own your materials. These materials you have the right to use. These materials are in the public domain. It's all separated out and now nobody has to worry about anything. You can operate your website freely and you don't have to worry about ownership issues, copyright and so on.
Michael: That's fascinating. I really love how you broke it down, and just to make sure I understand because I'm slow sometimes, I want to make sure I really have those categories correct. Typically, when you are working with the client, things they own are things brought to the relationship like their own logo, their own content, their own images, their own materials, that's very clear. Second category, things that you develop for them that they do own those things and you indemnify them and make sure that you have all the proper licensing and the copyright for those things as well. They actually own those things, correct?
Michael: Then the things like source code, for example any kind of software you write for them behind the scenes, any kind of modifications you make to their website, when it comes to applications development, even the HTML, those are the things that you technically own but you give them a perpetual license to use, so they're still fine but they can't go back and say, ‘you know, you couldn't use it for any other clients,’ for example. Is that how it works?
Ben: Yeah and actually and the reason you lay it out like this, Michael, you put it perfectly, is people are to say, "Well, I don't want anyone to take on my website. I want to make sure you don't give my website to the competitor." Well, if you separate it out like this and all the branding, all the content, all the images owned by the client, you can't give that to the competitor. All you're giving them is what I tell people as piping and infrastructure.
What goes on behind the scenes doesn't differentiate you, doesn't give you any uniqueness. What really makes you special as a customer is your brand and your image, and your graphics and your pictures and your content. You own that wholly, so by doing this methodology, everybody's protected, everybody's happy, you don't even have to worry about someone knocking on your door and saying, "I'm going to shut you down."
Michael: It really makes a lot of sense when you think about it because if you were true when you say, "Yes, client, you own your website" then you really couldn't do work for anyone else because of course you're going to copy and paste snippets of HTML to build a website for somebody else. Of course you're going to reuse code libraries otherwise you'd be able reinventing it every single time as an agency and that would be incredibly inefficient and your price would be astronomical as a result.
Really that protects everybody because that allows us as agencies to be efficient and allows your clients to get the best value possible and everybody wins. It makes a lot of sense, am I understanding it correctly?
Ben: You've nailed it Michael, exactly right. You want to protect your client. You want to make sure that your client is paying you for what is theirs and only theirs but you also want, secondarily, you're right, using libraries, picking things up off the web. It's what makes web development so great today are all the things that are out there as a tools that are available to all of us to give really creative great solutions, but you want to protect your client and make sure that what you're giving them they will be able to use in propriety.
That's exactly what you're saying. It's the best of all worlds at this point. You have to be very careful in doing this. You have to make sure that you really approach this because people will come after people if they think they see something that they own, especially to come off and put a gun into your head and say, "I want a royalty. You've been using it for 10 years or 5 years, I want a royalty, I want you to stop right now, shut your website down, shut your business down. You have to protect your clients from that potentially happening.
Michael: Yeah right on. Do you ever get push back from your clients when they say, "Oh, I own my website, and you explain this concept to them. Did they ever push back and question that or end up unhappy with that arrangement?
Ben: We've done over 500 engagements in our 10 years and we've worked with IBM, and Waste Management in Staples, and Intuit and large corporations, when they see how we set up our contracts, they say, "Brilliant! This is perfect." We've gotten on in negotiations with IP lawyers. I actually hired two IP lawyers, one in California in the Silicon Valley and someone I knew in the Boston area to help me put this together, to make this work right, but the large corporations, they go in and they say, "You know what. This is great. I know I'm protected. This is the right way to do it."
I have to say out of 500 engagements, I've never had anybody want to change this type of relationship in terms of the ownership. Smaller companies really get nervous about it because they don't really understand it.As you know today, from the studies you and I have seen in our Digital Mastermind group, what was one of the top five things that customers want today? They want to own their code. They want to make sure that what they have, they own.
They don't want to go under their head. They don't want a web developer that they'd break off the relationship saying, "Oh, that's my product. You can't have it." That's their concern. This protects everybody, but the larger companies they read this language and they say, "It's dead on. It's exactly what we need to have to protect ourselves."
Michael: Going back to the code ownership, you're right. That is what a lot of people ask for. A lot of organizations are saying, "Why? I want to own my code," but what you're offering them is still just as good because they don't technically own it, but you're giving them a perpetual license which means that if they separate the relationship from your company they still have that perpetual license to use. It's basically as good as owning it, right?
Ben: It is... and quite frankly, it would not be proper to give somebody ownership of something they don't have the rights to own. If somebody creates a library and puts it out there, how can you turn around and say, "Hey, listen, I'm going to let you own this."
You can't because you don't have ownership rights to it. What you do is you have rights of use. Don't forget, I know in the open source world and a lot of other worlds when you look at licensing if somebody gives you the right to use and you use it and you give it to somebody else, that licensing flows in. Those rights flow to that person.
It's unrestricted rights. That's what you want and sometimes you have to sit down and explain to people. You can't own somebody else's work, but you can use it for the rest of your life in any way you want. You could sell it. You can do whatever you want to it. There are no royalties associated with that. You have the right to use. Here's the licensing agreement that says that and you're free and clear. It's just more clarifications you're right. It's just the same as owning it because it solves the problem.
The problem is I'm going to be able to use it forever whether I have a relationship with you or not. I don't want anybody knocking on my door and telling me I have to pay a royalty or take it down. That's exactly what we're doing.
Michael: There you have it. That's been incredibly enlightening for me, I know and I think for our audiences as well. I think it's probably cleared a lot of misconceptions and it really helped me quite a bit, so awesome, thank you Ben! That has been great, very insightful, so tell me a little bit about … Let's end up with a shout out to CommonPlaces. What are you great at?
Tell me about your company. What kind of clients you love to work with? What your strengths are? If someone's coming to CommonPlaces, which by the way is commonplaces.com, is that correct?
Ben: That's right, commonplaces.com. We're really great at building fun, exciting and profitable websites. Not just the typical brochure site. We like to build things that are creative. We have a great web development staff. Additionally, as you know Michael, both from you and I going to all our strategy meetings we really love to work on projects with people who have digital strategy that we commit to put in place because it's all about converting customers today. It's all about making money, so we have an inbound marketing team, trained certified professionals that are Hubspot certified that not only can do strategy, we do business plans.
Waste management, Staples, companies like that we put business together for them. We can do the design, build the application, the website and do the marketing, make sure that you attract customers to your website and convert them and make money and get a good hourly [inaudible 16:24].
We're a full service agency, just North to Boston, got a great team, we have a great time and we love doing what we do. It's just a blast. There's nothing better than taking a project or taking an idea that somebody has and bringing it to life and having them make money and be successful at it. It's just what makes us go every day.
Michael: We feel the same way here in SpinWeb so I am with you. We're in sync with your enthusiasm.
This has been great. Like I said, very insightful, lot of great knowledge, you're doing a great work. So look forward in seeing you in our next conference next year. We have a couple lined up and we'll definitely look forward in hanging out again then, so. Anything else you want to add as a wrap up Ben?
Ben: No, I really appreciate this Mike. This is a great discussion. Appreciate what you're doing. Love working with you and I'll see you in January in Florida and in our next conference.
Michael: Sounds great! Looking forward to it. Alright, thanks Ben! Thanks everybody for joining us and have a great day! We'll see you next time.
Ben: Thank you!
Well, there you have it. Ben sets us stright on what website ownership really looks like. We hope you've enjoyed this interview and don't forget that if you would like to view the video version you can see it here on the Digital Exec website or you can listen here on the podcast.