Many web designers include credits (“Designed by XYZ”) as a matter of course on the websites that they create. Many web design contracts do not, however, cover the issue of credits. Whilst in some cases contractual clauses relating to credits may be overkill, in other cases they can be very useful indeed.
This post examines the main issues: rights of paternity and contractual rights to include, remove and edit credits.
A legal right to a credit?
To the extent that a website design consists of non-software copyright works, then the creator of the design may have a legal right to be credited. This is commonly called the “right of paternity”
The basic right is set out in Section 77 of the Copyright Design and Patents Act 1988: “The author of a copyright literary, dramatic, musical or artistic work … has the right to be identified as the author or director of the work in the circumstances mentioned in this section; but the right is not infringed unless it has been asserted in accordance with section 78”. This English law proviso on the right of paternity does not appear in the Berne Convention, and does not exist in many other legal systems.
Section 78 provides that this moral right of paternity may be asserted inter alia “by instrument in writing signed by the author”. The obvious place to assert a right of paternity would be in the web design contract.
The exclusion relating to software is set out in Section 79 CDPA, “the right [in Section 77] does not apply in relation to the following descriptions of work- (a) a computer program; (b) the design of a typeface; (c) any computer-generated work.” So, whilst HTML, CSS, Javascript and other encoded elements of a website may attract copyright protection, they will not generate a right of paternity. The “look and feel” of a website will often not be protected by copyright as an artistic work, and in these circumstances there may be no right of paternity at all.
For all these reasons, the importance of the English law right of paternity to website design credits is limited. However, if the copyright law of other jurisdictions may apply – and often it will – then it may be sensible to waive all rights of paternity in the web design contract.
Contractual rights
English law web design contracts usually ignore the possibility of a right of paternity, but they do sometimes contain a contractual right benefiting the web designer or web design company. Typically, they will specify that the website as created by the designer will include a credit in a particular form. Sometimes the form will be agreed in advance; sometimes it will be subject to subsequent agreement.
More sophisticated clauses may also provide that the web designer has the right to require the removal of the credit from the website. Most customers will want the right to change their websites, and web designers may not want to be credited for the – potentially ugly – results of a customer redesign.
Historically, web designer credits have often included hyperlinks pointing back to the website of the designer. Some search engine consultants believe that these links can, sometimes, be a liability. Certainly, this form of link-creation does not have the same SERPs benefits as it used to. In any event, given that the search engines are constantly changing their algorithms, a cautious web designer may include a contract clause requiring customers to comply with requests to edit credits. Customers may, of course, want to see restrictions on this right.
Example clause
Taking all the above into account, a detailed clause on web designer credits might read as follows:
x.1 To the maximum extent permitted by applicable law: (a) the Designer hereby waives any moral right of paternity that he or she may have in relation to the Website; and (b) the Designer shall ensure that all employees and contractors of the Designer shall waive in writing any moral rights of paternity that they may have in relation to the Website.
x.2 Notwithstanding Clause x.1, the Customer acknowledges that the Designer shall include a credit on each page of the Website.
x.3 Subject to the express written agreement of the parties to the contrary, this credit: (a) shall be in the following form – “Website Design by XYZ Ltd”; (b) shall be included in the website footer only; (c) shall include a hyperlink to the website of the Designer; and (d) [other requirements e.g. as to font size].
x.5. The Customer must: (a) not without the prior written consent of the Designer alter, edit or remove the credit from the Website; and (b) ensure that no other person authorised by the Customer to change the Website alters, edits or removes the credit from the website.
x.6 Within 14 days following receipt of a written request from the Designer to do so, the Customer must remove the credit from the Website.
This drafting assumes that the following terms are defined (elsewhere): Designer, Customer and Website.
Clearly, the whole clause would be OTT for most contracts – and it could be shorter – but some combination of the sub-clauses would be appropriate for many contracts.
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