Do You Own Your Web Site Design?

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 by: Richard A. Chapo

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:

1. A contribution to a collective work,
   

2. A part of a motion picture or other audiovisual work,
   

3. A translation,
   

4. A supplementary work,
   

5. A compilation,
   

6. An instructional text,
   

7. A test,
   

8. Answer material for a test, or
   

9. 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.

About the Author

Richard Chapo, Esq., is with SanDiegoIncorporate.com. He 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.

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