If you hire someone to create a copyrightable work for you --
- a technical manual, a book cover, a CD cover, a Web site, or whatever -- you might be
forgiven for thinking that you own that work. You asked this person to create the work,
you paid the person, so it's yours, right? Not necessarily. It depends on the agreement
you had with this person.
- In many cases it's quite clear what is going to happen. When someone writes a book for a
publisher, for instance, there's generally a contract that explains all sorts the rights
and obligations; the contract explains what rights will be transferred to the publisher.
In other cases -- more to the point, in the case of Web design -- the question of rights
transfer is unclear or perhaps completely unstated.
- Now, a copyright belongs to either the person who created the work, or, if it's clear
that the person was at the time employed by someone else and the work was done as part of
that employment, by the person's employer. If the person creating the work is a
freelancer, not an employee, the copyright still belongs to the creator, _unless_ there is
a contractual agreement stating either that the work is a "work for hire" or
that the copyright will be transferred to the person paying.
- (A verbal contract is legally valid -- but as Sam Goldwyn once stated, a verbal contract
"isn't worth the paper it's written on," because it's hard to prove a verbal
contract. Thus a signed paper contract is a better idea.) What, then, does the person
paying for the work own?
He owns the right to use the work in the manner for which it was clearly intended.
For instance, let's say you hire a Web designer to create Web pages for you. Let's also
suppose that you have a verbal contract you can't prove, or you have a paper contract that
neither specifies that the work is a work for hire, nor specifies that copyright will be
transferred to you (perhaps the contract specifies only the number and type of pages you
want and the fee you will pay).
Who owns your Web site? The designer.
The designer (in our case Picture This) owns the copyright, and you own the right to use
the Web site in the manner for which it was obviously intended. If you provided text and
images for which you owned copyright, you'd still own the copyright to that text, but the
designer would own copyright to the overall design. What's that mean? What sort of dangers
does this open you to? Here are a few examples:
* The designer may demand that you include a "designed by" note at the bottom of
every page, along with a company logo.
* The designer may demand that you hire him to make future changes -- he may stop you from
hiring another designer or modifying the site yourself.
* The designer may not allow you to copy the site and use it for other purposes, unless
you hire him.
* The designer may use the overall design again for another client.
I should note that these things are not likely to happen -- but perhaps only because most
designers know as little about copyright law as their clients. But nonetheless, the threat
is real ... and it's very easy to avoid.
All you need to do is make sure you have a signed contract that states that the work is
a "work for hire." You may even want to take an extra step, and specify that you
will own the copyright to the final work.
I fully expect to receive email telling me that I'm wrong. It seems so _obvious_ that
the client must own the work, after all. Please, don't email me, I don't have time for an
argument! The law is quite clear on this -- the creator of a copyrightable work who is not
your employee owns that work, unless the rights are transferred to someone else by use of
a contract. (Book publishers know this, which is why most have contracts that clearly
specify rights ownership when working with cover and book designers.) If you don't believe
me, do a little research of your own. I strongly suggest that the rest
of you begin using these clauses in a signed contract (even a simple letter of agreement)
right away!
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