rip-off or homage?

I don't think you'll have to change anything. Last I looked, squares weren't copyrightable.

Unless you used his actual images (sounds like you didn't), I'd say, whatever, toodles newbie!

What a ding dong. LOL I'd tell him/her to stuff it. The only thing I see that is exactly the same are the two decorative graphics. Do you know if that designer made these? Or are the public domain somewhere? More than likely the latter and that designer can't claim those.
Anyways, you can do a google image search on japanese phoenix (for example) and find something similar I'm sure if a big deal is made about it.

you say there was no contract - unless the original designer has established a copyright or some other restriction on use of the work, it would seem to me there's an implied contract of fee for services - this would leave the work product as the property of the purchaser, I'd say

here's some light reading that may or may not have any relevance to your situation

http://cyber.law.harvard.edu/property/protection/Resources/gallo.htm

I do think that those designs are a little too similar. The use of the squares and arrangement of them, particularly on the inside navigation menu, are too similar to be conincidental. The same could be said for the overall design style (almost identical navigation layout, similar header style, design on red background with white content area etc. etc.)

However, as mmi said, unless there was a contract defining other terms, the site is property of the client and is his/hers to do as she wishes.

At the same time, as you mentioned, how would you feel if someone did this to one of your designs? I would be rather peeved (and this has happened to me on several occasions).

This does seem to be a rather sticky situation. Can you talk to the original designer and maybe work out a compromise? If I were in her shoes, I may not have objected with this if someone had asked me first.

Respectfully, Megan, I disagree with you on the squares. You see these things all over the internet. The other designer has a little bit different arrangement of them and the lines are dotted. It is obvious that Taff has designed them in another way.

If the owner of the site wants a redesign using the squares, then that is what Taff would have to do. She couldn't say, "Well, so and so used squares so I can't do that."

I do agree however on contacting the other designer and see if you can make a compromise. This seems to be the most professional thing to do.

Frankly, unless there is a contract, the client most likely owns the site entirely and Taff can then reuse anything he wants. Without a contract, the work would be most likely considered to be done "for hire", and the original designer has no rights whatsoever.

Especially since the main design elements are from the owner of the site, and since squares are a common design element and cannot be copyrighted as is.

But that would require a legal opinion.

I agree that unless there was a formal contract drawn up between the owner of the site and the previous designer then there is no problem. It is , after all, the owner that is asking you to re-do the site in a similar look, you are not copying the layout/look/design for some other perpose.

Wow, thanks guys. Lots of discussion.

I was frankly under the impression that unless intellectual property has been contractually transferred, it is the legal property of its creator.

I don't even want to go that far really. To me it is more of a professional, ethical issue than a legal one. I don't think you'd have to dig too far into these forums to find a thread with me whining about someone else butchering one of my designs.

Personally, I think these are quite similar. It was my goal, frankly. Had the site been designed in a more flexible manner, or had I access to all the original Fireworks files, I would have keep the design, done the requested edits, and call it maintenance.

I has no point of contact to the previous designer. She's not even doing this professionally now (if ever) and the client really doesn't want to "stir things up" She is willing to pay me again to do it over but I feel a little bad about that.

Ah well, I think I'll try to tweak it a wee bit. If that fails to satisfy me, I may just scrap it and start over.

Quote: Since the client wanted to keep a fair degree of the original site's look and feel, I proceeded to create another site that drew heavily on the original design elements. I had no access to the original Fireworks files but many of the graphics came from the client anyway.

This is what I mean - not exact copies but drawing heavily on another designer's ideas. (Okay, I admit, I really don't understand how you can look at those two sites and say that they're not almost identical in terms of style, use of elements, arrangement etc. The differences are very slight IMO. I must be blind or something.)

Technically you can say that it's not a direct copy, since you didn't actually use any of the source files or anything. No, you can't copyright squares. However, you did use the same style and design elements and arrangements and the design is obviously heavily inspired by the earlier designer's work.

I think it would have been a better idea just to work with what was there, re-do the code, and rearrange the graphics etc. (Because you maintain the integrity of the earlier designer's work rather than copying it).

Another idea would be to give the earlier designer credit somewhere for her original concept and ideas.

Quote: Originally posted by Megan
I think it would have been a better idea just to work with what was there, re-do the code, and rearrange the graphics etc. (Because you maintain the integrity of the earlier designer's work rather than copying it).

Have you looked at that code? Nothing to "redo". It is just a slice of images from Fireworks. Like I said, if I had the original layered files, I would have just tried to fix what was wrong with the original design.

Try to do a simple text edit on the original site.

Quote: Originally posted by Megan
Another idea would be to give the earlier designer credit somewhere for her original concept and ideas.

Oh, this goes without saying. I was just waiting on a name before adding a "Graphic design by..." credit to the acknowledgements (or something to this effect). This is not satisfactory apparently. My guess is that she had done the site as a portfolio piece and now doesn't have one. No amount of secondary credit or site massaging is going to change that

Okay, I really don't understand this person. She gave up this site because she had lost interest in the field, but still needs a portfolio piece? Weird.

The way I see it, this is in her hands now and she's got two options:

1. Give up. You would have to do a completely new design of the site, not based on her original design. Your design replaces hers on the live site. She no longer has a portfolio piece.

2. She gives you the source files (assuming they still exist). You do the code and other changes without making too many alterations to her original design. The design is still hers and she still has a portfolio piece.

Technically or legally you probably have the right to do whatever you want, but ethically I think you have to consider the other designer's position as well. It seems to me that she is being unreasonable but there's not much you can do about it.

Either that or you can just go ahead with what you've got and put her name down as a credits whether she approves or not. I'm not sure about this one though... it would be different if you were directly modifying what is there (which is owned by the client).

Just a note about who owns what -- work for hire is completely different. In work for hire, the creator owns nothing. The person hiring the work to be done owns everything. Which is why contracts are so so so so important for freelancers!

If you make something, then sell it, it's yours. If someone hires you to make something, it is work-for-hire, and you don't. Unless you have a contract stipulating that you own the copyright to the work you are doing for them. That's why people working for companies don't own the software they write while working for those companies (employees don't own rights, the company does), and why contractors working for companies can (contractors typically only work under contract).

S

ok, how's this?

http://www.sitesunseen.com/clients/redphoenix/concept2/

That's better (as far as similarity goes). Too bad you can't use that gorgeous menu she did

I've posted this before, in the US the CREATOR owns the copyright of the work unless it is EXPLICITELY signed over to the person doing the contracting. I worked for a client who lost thousands of dollars under the mistaked belief that, because they paid for it, they could copy it.

If the original artist is putting up a stink do a complete redesign.

Quote: Originally posted by doublehelix
I've posted this before, in the US the CREATOR owns the copyright of the work unless it is EXPLICITELY signed over to the person doing the contracting. I worked for a client who lost thousands of dollars under the mistaked belief that, because they paid for it, they could copy it.

If the original artist is putting up a stink do a complete redesign.

Agreed and done.

it's critical, as others have noted, to distinguish between independent contractors and employees in this context

Quote: If a hiring party that did not actually create the web site is not found to be an author--either under the work for hire doctrine or by way of joint authorship--his only hope of legally using the web site is by a transfer of a right from the copyright owner to the hiring party. Copyright vests initially in the author. Therefore, absent a subsequent agreement to the contrary, the hiring party has no ownership right in the copyright. Absent a transfer of the copyright or a license, it would be unlawful for the hiring party in our web site scenario to reproduce the work, make a derivative work, or display the copyrighted work publicly.

from the doc I posted earlier