Website copyright?

Hi folks,

Does anyone know how copyright is assigned to websites in the US and Europe? I assume it is divided somehow between design and content. Does this mean that designer and client share the rights?

Thanks in advance for any info on this.

Jim

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In the US, copyright rests with the creator of a work, and is vested at the moment of creation. There is no legal need to register or to officially notify anyone of this, it just is. Any rights that are not explicitly (and in writing) conferred to another party remain with the creator of the work.

Many times, contracts for creative work will stipulate that the client will be granted all rights upon satisfaction of the contract. Here’s a snip of my contract language for a couple of examples:

Work for Hire version:

All design work performed for Client by Studio will be considered a Work For Hire. All rights (including Copyright) in and to the design, with the exception of the right to use images of the design or the design itself as portfolio samples for Studio self-promotion, will be reserved to Client. Client further agrees to not remove any identifying credit lines or marks in the finished work that serve to promote the Studio.

Portions of the work created by Studio may include “Open- Source” software components, licensed for use under the GPL, LGPL, BSD, Apache, or other related licensing schemes. All source code and licenses for such components will be provided to Client by Studio upon request.

Elements of the content management system shall be considered “toolbox” code for the purposes of this agreement, and will not be transferred as part of the Work For Hire terms of this agreement. These code elements will remain the exclusive property of Studio, and Client is granted an unrestricted right to use these elements as part of the delivered Web site upon satisfaction of this contract.

More restrictive version:

This Agreement stipulates that the site includes code elements and images being custom created for the Client as well as code based on toolboxes of techniques and pre-developed code that is property of Developer or one of its contractors. This software technology is licensed to the Client for a one-time fee and is limited to installation and usage by that Client only on one “site” of connected documents on one “server” or “fault-resistant redundant server installation” at one World-Wide-Web address. Such code or images may not be distributed or re-licensed without the express written consent of Developer. Any code elements or server-based applications provided by Client shall remain the sole property of the Client.

Some images to be used in this site may be licensed from their owners. This agreement does not modify the terms of those licenses. Under no circumstances will this agreement transfer ownership of any licensed images, except as limited reproduction rights as stipulated in the original licenses.

Developer will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other supplied material, with the exception of the Client company name, logos, and any other copyrighted or trademarked material supplied by the Client.

Client represents to Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Developer for inclusion in web pages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.

Developer shall retain ownership of the content, and all rights, including the copyrights, therein and hereby grants to the client an exclusive license to use the content in the form delivered as the client’s Web site. The client may include its copyright notice on the Web site.

Client shall have no right to edit, revise, alter, adapt, modify or otherwise change the content from the form delivered without Developer’s prior written consent, except to make minor changes. The determination as to what constitutes a proposed ‘minor change’ as this term is used herein shall be in Developer’s sole discretion.

Design credits to Developer will be placed the HTML code of each page, hidden from normal view, and may not be modified at any time without express written consent of Developer during the existence of the website for public viewing.

Which end of this spectrum you trend toward, naturally, depends on your relationship with your client.

Walter

On Aug 9, 2008, at 2:24 PM, JimS wrote:

Hi folks,

Does anyone know how copyright is assigned to websites in the US and Europe? I assume it is divided somehow between design and content. Does this mean that designer and client share the rights?

Thanks in advance for any info on this.

Jim

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Thanks, Walter, for the instructive reply.

I guess a lot depends on the wording of the contract. The large print giveth and the small print taketh away.

Jim

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That is true, contracts are important. They can also be simple, single-page if clearly written.

When it comes to copyright, the author is forced to defend his/her connection to the work. Although it isn’t supposed to be like trademark law - where the mark owner is required to defend their mark or risk losing their connection to it - it is often treated that way in practice. My rule of thumb is deciding what level of future effort I want to make in protecting my copyright. Knowing that a certain amount of rip-off is going to occur, do I really want to fight everyone in China over some logo? Better to come to terms and legally transfer that right to someone else imo. But then again, some level of clientele will want your help in defending what may be their future brand, so a higher cost is acceptable to them. All this depends on knowing what is being asked of you, which goes back to the contract.

I’m not sure that websites themselves are protected by copyright — their content surely is protected, but I’ve heard what I think are specious claims about font, color, “design”. That would be like claiming the color blue as my own and no one else’s — or that two column articles belong to someone else. It’s my understanding only content is protected by copyright law, not the method of delivering that content. But by then you have lawyers involved and that is the part I’d rather avoid.

On Sat, Aug 9, 2008 at 2:40 PM, JimS wrote:

Thanks, Walter, for the instructive reply.

I guess a lot depends on the wording of the contract. The large print giveth and the small print taketh away.

Ernie Simpson — Freeway 5 Pro User — http://www.thebigerns.com/freeway/

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Big Erns wrote:

what level of future effort I want to make in protecting my copyright.

I agree, unless realistic enforcement is possible what’s the point?

Thanks, nice to see you back Ernie.

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PS. There is a loophole for copyright violators. In the US the law contains a clause allowing fair use for educational purposes. Wikipedia applies this when artwork is posted on their site.

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Sometime around 13/8/08 (at 14:10 -0400) JimS said:

PS. There is a loophole for copyright violators. In the US the law contains a clause allowing fair use for educational purposes. Wikipedia applies this when artwork is posted on their site.

Sadly, this idea of fair use is woefully misunderstood; you cannot just use a portion of something that’s protected by copyright and use the ‘fair use’ shield as a kind of get-out-of-jail-free card.

The only chance this argument has of succeeding is through the not-for-profit route. There cannot be any kind of commercial interest involved. Any hint whatsoever of commercial interest, gain or advantage, even indirectly, is enough to make the not-for-profit argument fail. There’s something on this in my Creative Commons article:

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http://www.thehelpful.com/creativecommons/what-is-commercial-use.html

So what is ‘commercial use’?

One of the most basic restrictions you’ll see with content covered by a Creative Commons license is the non-commercial clause.

This is a legal definition, so it is simple enough to find out exactly what that means. Well, simple in one sense. The definition of commercial use is broad, covering more than just obvious ‘profit-making’ uses. In practise, the term is equivalent to income-generating use of any kind, whether direct or indirect. If you use content for general research, even if not for any specific purpose, and you or your organisation generates income, that counts as commercial use. So does using content for pro-bono work (from the Latin pro bono publico, meaning ‘for the public good’, or working for free), if it also enhances your reputation or leads to income-generating work in any way whatsoever.

Basically, if there’s as much as a sniff of commercial interest in what you’re doing then it counts as commercial use. There’s also no such thing as fair use in commercial contexts any more. A European Union directive passed in 2001 was finally made law in Britain in October 2003, and this put paid to the ‘fair use’ clause which allowed ‘small’ portions of a work to be copied for commercially-related purposes. This is still allowed for non-commercial work. Further information can be found in the British Library’s copyright FAQ, found at http://www.bl.uk/services/information/copyrightfaq.html.

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k

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Hi Keith,

Don’t we have rights to quote from or exhibit a work when critiquing or teaching- isn’t that also commercial use, enhancing our reputation?

There may be a discrepancy between British and US law in this regard. See the article quoted below:

“… the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

http://en.wikipedia.org/wiki/Fair_use

Jim

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Sometime around 13/8/08 (at 18:39 -0400) JimS said:

Don’t we have rights to quote from or exhibit a work when critiquing or teaching- isn’t that also commercial use, enhancing our reputation?

I’d say that’s not considered to be commercial use. But an educator should - and the ones I work with at least do - know the difference between copying something for purely educational purpose and making excuses for ripping something off.

:-)

k

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