Here’s a typical scenario. … You need a new website for your business, and your next-door neighbor just happens to be a great website developer. So you hire her to build your website. When it’s finished, she uploads the site on your hosting company’s servers, switches it on, and gives you the original files. You’re thrilled with the work, and you pay her in full. Now you have a great website to market your business. But do you own your website?
When I first learned the law that provides the answer to this question, it changed the way I look at hiring marketers, writers, graphic designers, and others for creative projects. And now I always make sure my clients understand the basics of the law and what they need to do to protect themselves.
Copyright law and websites
When we talk about “owning” your website, we’re actually talking about whether you own the copyright in the web developer’s creation. As the developer types into her computer, she’s creating intellectual property with each keystroke. The default rule under copyright law is that the copyright in the work vests in the person who creates it. So, by default, the web developer you hired owns the copyright in her creation.
But that doesn’t seem fair, because she’s creating it especially for you, and you’re paying her for it. Shouldn’t the copyright automatically transfer to you when you pay the developer? That’s intuitively correct, but it’s simply not how the law works … that is, unless you dot some legal i‘s and cross some t‘s.
Work made for hire
Although copyright in a work initially vests in the author, ownership of the copyright doesn’t remain in the author if it is a work made for hire. A work made for hire is either (1) a work prepared by an employee within the scope of their employment or (2) a specially-commissioned work. Works created by employees are automatically works made for hire, but specially-commissioned works created by non-employees (e.g., your next-door-neighbor web developer) are works made for hire only if the parties expressly agree in a signed writing that the work will be considered a work made for hire. In short, if someone who isn’t your employee creates a copyrightable work for you and you don’t have a contract with them, you don’t own their creation, even if you pay them for it.
To complicate things even further, works created by non-employees are works made for hire, only if they fall within the following categories: (1) contribution to a collective work, (2) part of a motion picture, (3) part of other audiovisual work, (4) translation, (5) supplementary work, (6) compilation, (7) instructional test, (8) test answer material for a test, or (9) atlas. Little–if any–of your website will fall into any of these categories, so even with a signed contract, it won’t be a work made for hire.
Assignment of copyright
All is not lost, however, because we can simply have the web developer assign ownership of the copyright in your website to you. So you should have a contract with your developer that contains language that assigns copyright in the work to you. It’s that simple.
Who’s actually creating the website?
So we know that, to make sure you own your website, you need to have a contract with your web developer that assigns ownership of the copyright in the website to you. In our example above, you hired your next-door neighbor. But what if you hire a company to build your website, instead of an individual? In that case, your contract will be with the company and not the individual who is actually creating the website. Will you still own the copyright in your website?
We know that copyright in works created by employees in the scope of their employment are works made for hire and that ownership of the copyright belongs to the employer even without a contract between the employee and the employer. So if your web development company only uses employees to build your website, you’re in good shape.
But what if the company uses independent contractors? If your web development company uses independent contractors to work on your website, the company won’t have copyright to give to you, unless the company also has a contract with its independent contractors that transfers ownership of the copyright in works created by the independent contractors to the web development company. So you should make sure that your web development company has also dotted its legal i‘s and crossed its t‘s.
I often take care of this issue by inserting into my web development contracts a provision that requires the web developer to use only employees to do the work or independent contractors who have appropriate contracts with the web developer. Here’s some sample language:
All services will be performed solely by employees of the Web Developer and independent contractors of the Web Developer with whom the Web Developer has a written contract assigning to the Web Developer all copyrights and all other ownership rights in content and other work product created by the independent contractors under the written contract.
Bringing it all together
To make sure you own the copyright in your website, you should make sure that you have a written contract with your web developer that assigns ownership of the copyright to you. And if your web developer is a company, you should make sure the company only uses its employees and its independent contractors that have appropriate contracts with your web developer to work on your project. If you do these things, you can rest at night knowing you own your own website.