An old issue was raised on a forum recently and it caused me to go digging for more information. The question of who owns copyright for a web design. As a legal secretary AND a web designer, this is an issue near and dear to my cold little heart.
Work for Hire
Most employers, folks who retain our services to create web designs for them, prefer to view our products as works made for hire. And generally they are, if several criteria can be met. First, and most important, there MUST BE a work for hire agreement or an assignment of our copyrights to our creative works to that employer. Both bona fide employees and independent contractors (such as web design firms and free lance web designers) can usually be considered to be employees for the purposes of “works made for hire.”
Three things MUST be in existence for a work to be considered “work for hire”:
- The work must be commissioned anew (not the redesign of a previously existing work);
- There must be a written agreement in place PRIOR TO COMMENCEMENT OF THE WORK which gives all right and interest in and to the creative work to the employer;
- The work must fall under one of these nine categories: (1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., “a secondary adjunct to a work by another author” such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index)
It’s still up for debate whether or not web design falls under Item 2 of the laundry list above, “other audiovisual work.” And even if it does, without that written contract signing all or partial rights to the employer, the copyright still lies with the web designer. So contracts are very important.
What Rights Does A Designer Retain Anyway?
On the other hand, a good point was made by Frank Martinez, writing for AIGA (American Institute of Graphic Artists), that even if a web designer (or in this specific case, a graphic artist) retained full copyright to a logo he creates for a corporate client, since the trademark lies with the company, retention of any right other than the right to put the logo in his portfolio, is pretty pointless. Martinez urges creatives to pick their battles carefully. Indeed. Most corporate clients are going to have lawyers who look over any contract put in front of them and most employers love the work for hire concept. It’s slanted very heavily in their favor and leaves the designer with practically nothing. On the other hand, if you are creating unique, original designs, the chance that you will need to “reuse” the work for another client (besides being a tad unethical, especially in a competing industry) is practically nil.
When is a Web Design NOT a Work For Hire?
That’s easy. When you have a contract that specifically states that the designer retains all (or a good portion) of the rights to the work at issue. The bottom line is that the designer owns the creation from the moment it is put into tangible form and unless and until there is a written agreement signing away those rights, he continues to retain them. Now whether or not he wants to transfer complete rights to the work to the client is a matter for him and his client to decide. It doesn’t make much sense to keep full copyright on a client’s new logo or web design, especially if it is unique and created especially for that client (which it always should be or you are basically a lazy and unethical web designer). A software application or complicated script, however, is another matter. It can be resold elsewhere so you certainly don’t want to sign rights to something like that to your client. (Unless he pays you a million jillion trillion dollars.) Choose your battles wisely and always have a contract in place that spells out what is expected of both you and your client.
- U.S. Copyright Office
- Bulletproof Web Design Contracts (Sitepoint.com)
- Transfer of Rights in a Web Design Contract (Ivan Hoffman, J.D.)
- Work for Hire (Lloyd Jassin, J.D.)
- From the Web Designer’s Perspective (GraphicPush.com)
DISCLAIMER: I am not a lawyer and I do not play one on TV, and while I spend quite a bit of time telling lawyers what to do, I urge you to consult an attorney when drafting or contemplating drafting or executing contracts or any other legal instruments. The above article was culled from several sources and is NOT to be construed as legal advice or the issuance of a legal opinion.