Who Owns Your Web Site?
Copyright Law and Web Site Development
It seems like a silly question, doesn't it? The usual answer would be…something like”"well, I paid good money to have my web development company build the site. Of course I own the web site."
It would probably come as a surprise to you to learn that you actually may not own your web site at all. If you, like the vast majority of Internet based businesses had your site developed by an independent development company, you may not own your web site, even though you may have paid good money to have the developer create the site. The developer may actually own your site in the legal sense.
The ownership of your web site, when created by an independent contractor, is determined by an interplay between the United States Copyright Act and the agreement that you may have entered with your web site developer. Generally, under the Copyright Act, the “"author" of the work, the party that does the work to create the web site, will be considered the copyright owner. An independent contractor that does the development work is generally considered to be the author of the work for Copyright Law purposes.
If the work is considered to be a "work made for hire"” under the definition that is contained in the Copyright Act, you will be considered to be the author of the work with the right to claim a copyright. If you have your web site created by a bona fide "employee," the work will be a “work made for hire. However, there are three requirements that must be met in order for a work that is created by an independent contractor to be considered a “work made for hire. If all three of these requirements are not met, the independent contractor will be considered the author of the work with all copyrights to the work.
The issue of who owns your web site can have very significant and potentially devastated effects on your online business. Let's assume that you had a web site developed by an independent contractor. The agreement with the developer did not contain a work for hire provision. The developer would be considered to be the author of your web site and has the right to assert the copyrights to the work. Let's also assume that the developer took the initiative and registered a copyright application with the United States Copyright Office. He would have the right to make this registration because he is the author of the site. Later you decide to have some modifications done to your site. You call your original developer who quotes you a development fee that you feel is too high. You shop around a bit and find someone who you think will do a good job for about half the price that the original developer quoted you. You deliver the files for the original web site to the new developer who does the modification to your complete satisfaction. You pay the new developer for the work and have the new developer place the new material online.
Before you know it, you are receiving certified mail from the original developer accusing you of infringing on his web site by having someone else modify the original work. Legally speaking, absent other facts, the original developer would be correct in his assertion. As the owner of the copyright on the original web site, the original developer has certain exclusive rights that are protected under the United States Copyright Laws. That is, unless you take steps at the time the contract is entered to assure against this.
One of those exclusive rights is the exclusive right to create derivative works based upon the original work. Derivative works would likely include the modifications that you had the second web developer perform. These modifications would constitute infringement of the original developer s copyright. He would be entitled file a copyright infringement actions against you, and perhaps even against the second developer. He could sue you for his actual damages that resulted from the infringement. If the developer filed a Copyright Registration within certain time frames, he would also have the option of electing to take statutory damages instead of going through the process of proving his actual damages. Statutory damages can be in amounts up to $25,000.00 or, if the original developer could prove that your infringement was “willful, up to $100,000.00. These statutory damages apply even if the original developer could not show that he was damaged at all by the infringement. In addition to the statutory damages, the original developer would be eligible for an award of attorney fees against you.
Proper planning is required to avoid problems and conflicts with web site ownership. The first place to address this issue is upon retaining a web developer. The initial contract should clearly spell out who owns the web site and who has the right to use the web site and for what purposes. If a web site has already been created without proper documentation, it is not too late, but you will need to have the web develper sign and assingment or at minimum a license permitting you to use and modify the site.
For complete form packages to help you address these issues, go to our web site, www.weblawresources.com We offer document package solutions for web businesses, web developers, hosts, ISPs, and other Internet technology businesses.
This article courtesy of http://tbnl.org.
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