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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.
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