Article: Do you really own your web site design?

By Richard 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:

A contribution to a collective work,

A part of a motion picture or other audiovisual work,

A translation,

A supplementary work,

A compilation,

An instructional text,

A test,

Answer material for a test, or

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.

Great article Meth0d! There's a lot of confusion about copyright, most people don't now how it all works. This article clears things up quite well. Since I create all my own websites I don't think I'll ever see another website using the exact same design, and if I do THEY have a problem

I thought i would own the design if i hired someone did it for me. Thank you for sharing.

[not]

well it depends. if you hire your everyday web designer, then you will not own the design or the copyright. in some cases, you come across a designer who is willing to sell the copyright..

i am one of those designers, i sell the copyright along with the design everytime i sell a website.  i believe its unfair not to do so

[not]

well it depends. if you hire your everyday web designer, then you will not own the design or the copyright. in some cases, you come across a designer who is willing to sell the copyright..

i am one of those designers, i sell the copyright along with the design everytime i sell a website. i believe its unfair not to do so

I see.. i thought everytime i buy a template from a designer it includes the copyright..

that depends. if the template is sold as-is i do not believe you own the copyright. but if it is custom designed or custom modified, and the copyright is sold to you separately (this requires a legal contract), then you may own it

i am one of those designers, i sell the copyright along with the design everytime i sell a website. i believe its unfair not to do so

So, do you design unique templates for each one of your client??? That's a lot of work!!! Recycling your own material is the way to go when you do freelance work.

If you sell the copyright to the website to your client, that person might be able to sue you if he sees that you have designed a website with a similar template to another client.

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Recycling your own material is the way to go when you do freelance work.

That really depends on the money. I mean if you charge $500 for a template then you are not allowed to recyle your material, but if we are talking for templates that cost $50 - $100 then you have to.

Hi all,

A site full of great info on this topic (sorry US only) is maintained by a lawyer in CA.

The link is: http://www.ivanhoffman.com/web.html

Lots of good stuff with case studies.

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