Ownership Of Materials That Appear In Web Pages

A web page is created as a copyrightable work as soon as it is fixed in a tangible form, i.e., when it can be displayed on a computer screen.  If only one person authors the page, that person is the owner of the copyrights that attach to that web page.  Those rights are the same rights the owner of a copyright has in other types of works.  They are: (1)the right to reproduce the work in copies; (2) to prepare derivative works; (3) to distribute copies by sale, rental, lease or loan; (4) to perform the work publicly; and (5) to publicly display the work..  (See What Does The Owner Of Copyright Control)  

If more than one person created the page, there may be joint ownership.  If the person is hired by someone else to create the page, the ownership issue may become complicated.  If the person is a salaried employee who created the work for his employer, the ownership is clear.  The employer owns the work.  Situations, however, where the employee worked on the project at home have led to decisions that the employee was the owner.

If the person is not a salaried employee, a written "work-for-hire" agreement must be in place or the person doing the work may end up owning the copyright.

Another layer of problems can be added to ownership issues where the web page consists of different components.  A claim may be made not to the web page itself but to components of the web page, particularly graphics that are borrowed or created by a third person.

All of these issues are present when, as very frequently happens, a company that knows nothing about websites hires an "expert" web designer to create a website for the company.  A written agreement should be signed before the work is done so that everything created by the designer is the property of the company paying for the website, including the copyright to each component of the website.  There should also be language to warrant that the designer of the website has the right to place each element in the website he or she designs.  In other words, the text and pictures are not owned by someone else who has not given permission for their use.

Once a website is up and running, new material is added to the site.  The same issues that need to be addressed when the site was created apply to any material that is added to it.  Most of the added material comes from employees of the website owner.  To avoid problems, language in a policy manual or in employment agreements should make clear that any addition to the company website is owned by the company.  Older materials (used in previous newsletters, for example), is an area that can cause problems as well.  Work created by employees is no problem.  Work 'voluntarily' created by employees, or contributed by outsiders, may give rise to copyright claims.  Permission to publish in a newsletter five years ago may not be permission to publish electronically on your website today.

Finally, just as in any other area involving trade names or publications, you may fall in love with a particular phrase or graphic design to identify your website.  However, if that phrase or design is confusingly similar to one already in existence, you may have a trademark claim by someone you never knew existed.  You don't want to spend money creating your onsite image and find out you have to spend more money to change it.  A termite company in Florida thought it would attract business when it chose the tag "Where There's Life There's Bugs."  Budweiser beer didn't think that was cute.  They use the phrase "Where There's Life There's Bud" and claimed that the termite company was 'diluting' their trademark.  The court agreed.  The answer?  Do a 'defensive' trademark search before you go public.  It may steer you to a different name or phrase and save you a lot of money. 

Law Offices of Douglas Clark Hollmann

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