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 a competitor
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 they 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.
About the Author
Richard A. Chapo, Esq., is an attorney with
www.SanDiegoIncorporate.com and 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.