Welcome to Copyright Law Radio. We bring you the best in copyright news, legal advice and information. From copyright infringement claims and defenses to threat letter issues, DMCA takedown notice letters, copyright licensing, and legal analysis of the latest copyright law cases, we have a copyright attorney who can answer your copyright questions.
This is Brian Hall a copyright attorney with Traverse Legal, PLC, a law firm that represents those involved in copyright disputes throughout the United States.
Today, I want to specifically talk about copyright ownership in websites. And I want to specifically focus upon the context where a particular entity either employs or retains an independent contractor to perform work on a website, be it web design, website SEO optimization or the like. The issue comes up very often as to who owns the content, the designs, or even functionality created for a website. Is it the company that employed or retained as an independent contractor a particular individual or is it the person that actually did the work?
To answer this question, we need not go any further than the Copyright Act. The Copyright Act of 1976 made some changes to what the Copyright Act of 1909 had. In particular, it vests ownership in the author of a work, except in limited circumstances. In that limited circumstance or that carved out exception is what’s known as the work-for-hire doctrine. Put simply, a copyrighted work comes within the work-for-hire doctrine if it consists of either, (1) a work prepared by an employee within the scope of his/her employment or (2) one prepared by an independent contractor on special order or commission.
So, the first situation is rather straightforward. If a company employs someone and is subject to an employment agreement and has them create various works as part of their employment, then that copyright would be owned by the employer rather than the employee. However, the more difficult question to answer is in the independent contractor context. And this is where several determinations need to be made and the help of a copyright attorney would be advised.
For example, the first determination is whether or not someone qualifies as an independent contractor or an employee, and laws of agency provide insight into that. But regardless, not every work by an independent contractor qualifies as a work for hire. There’s nine specifically identified work-for-hires with the statute. So, in order to qualify for a work-for-hire and, thus, vest ownership in the person commissioning the work, the work must be specially ordered or commissioned for use as a contribution to a collective work as part of motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as test, as answer material for a test, or as an atlas. However, the parties must agree in a written agreement signed by both of them that the work shall be considered a work made for hire.
That’s a lot of information. But if we dumb it down a bit, the simplest thing to think about this as is one, get a written agreement in place between you and the independent contractor and have it specifically say that what’s being done is a work-for-hire. Therefore, you, as the person commissioning the work, will retain ownership of it. However, in the instance that the work you’re commissioning may not fit within one of those nine enumerated categories or if you are unsure, it’s always important to include language that assigns all rights within that work to you. So, there could be language that says this is a work made for hire. In the alternative, if it does not qualify as one of those nine enumerated categories, the independent contractor assigns all rights to you as the company or individual retaining that independent contractor.
Now, where it really becomes a question is the website context. There have been many, many questions involving copyright law on the internet, and there haven’t been many decisions by courts of law as to whether a website can fall under one of the nine enumerated categories in the work-for-hire statute. It is possible the website materials might fall within the other audiovisual work category or maybe even the contribution to a collective work. However, rather than having to argue over that and litigate it in federal court, insulate yourself and have an agreement between you and the independent contractor consistent with what I mentioned before. This will provide you with the strongest position should an issue arise between you and your web designer, your web developer or someone else providing website related services.
So, once again, this has been Brian Hall answering questions related to website copyright ownership.
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