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Do You Own Your Web Site Design?
by Richard A Chapo
Your web site has been up for a few months and you are making money hand over
foot. While surfing sites one evening, you are shocked to find a competitor
using your design. You find out your designer sold them the same design. They
must be breaking the law, right? It all depends on whether you own the copyright
to your web site design. Many site owners are shocked to find out they do not.
What is
Copyright?
Copyright is a method of protection for authors of original works such as
literature, computer programs, music, artistic pieces and photographic images.
The protection provided by copyright arises under Title 17 of the United States
Code. A copyright gives the owner the exclusive right to do or authorize others
to: reproduce, prepare derivative works, distribute copies, publicly display and
generally use the material that carries the copyright in exchange for something,
typically a royalty or fee. The copyright owner often grants this use through a
license agreement, but can sell it outright.
Who Can Claim
Copyright?
Copyright protection is created IMMEDIATELY upon the creation of a fixed form of
the material in question and granted to the person that created the material.
For instance, I automatically own the copyright to this article upon completing
it. I am not required to file for an official copyright with the US Copyright
Office to prove that I am the owner of the content. However, if I want to sue a
person for using my article without permission, I must first register it.
What If I Hire Someone To Create A Web Site For Me?
If you hire a person or company to handle the design of your site, the
complexities of copyright become a major issue for you. Specifically, the issue
of "work for hire" is critical in determining whether you own the design.
"Work for hire" refers to the relationship between your business and the person
creating your web site. If this person is an employee of your business and
creates the material within their scope of employment, then your business owns
the copyright. However, what happens when the designer is not an employee? In
such a situation, the following must occur for the copyright to automatically
transfer to you. The work must be specially ordered or commissioned for use as:
A contribution to a collective work,
A part of a motion picture or other audiovisual work,
A translation,
A supplementary work,
A compilation,
An instructional text,
A test,
Answer material for a test, or
An atlas.
It is my opinion that the design of a web site does not fall into any of the
above categories. As a result, you do not own the
copyright
to the design and
can do nothing about the fact that one of your competitors is using the design.
Obviously, this is not the answer that most site owners want to hear. So, what
can you do to protect your business?
When you hire an outside party to design, alter, amend or improve your site, you
must have them sign a written contract. The contract must include a clause
clearly establishing that the copyright to the material produced is vested with
you, not the designer. You should then file the contract with your important
documents as some designers "forget" that assigned the copyright to you.
Presenting a copy of the contract and noting that it allows for the recovery of
attorney's fees usually solves the problem.
The issue of copyright ownership of a web site or aspect of a site pops up
often. Finding your design being used on another domain is bad enough, but it
can get worse. If you sell your business, the attorney for the party purchasing
your business will always ask about the copyright of the site as part of the due
diligence process. More than a few business deals have fallen apart when the
lack of
copyright ownership is discovered. Obtaining copyright at the outset of
your business effort will avoid serious problems in the future.
Richard Chapo, Esq., is with SanDiegoIncorporate.com. He can be contacted at
Richard@sandiegoincorporate.com.
This article is for general education purposes and does not address every facet
of the subject matter. Nothing in this article creates an attorney-client
relationship.
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