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
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
- A compilation,
- 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
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.