Does Your Company Really Own its Website or Logo?

You finally reached a turning point in your business.  As the single largest advertising investment you have made to date, your new company website has been launched.  However, over the next few months you discover that maintenance and updating costs for the website are more than you anticipated.  Your office manager mentions that her brother could maintain the website, now that its designed, for a fraction of what it has been costing you.  Terrific right?  Her brother later informs you that all you need to do is have the soon to be former web development firm copy the files onto a CD-Rom and he will upload them onto his server.  What could be easier? As an entrepreneur, you already know that things do not always go smoothly.  Sure enough, the web development company informs you that it holds the copyright on the design of your new website because it created the design and wrote the HTML code that created the website.  You are told that you only own the content, which is already in your possession when you provided it to them.  But you paid good money for the website design and it is yours right?  Not necessarily.  Why?  Because creators who produce work at the request and expense of a third party do not necessarily give up their copyrights in the process.  Think of this in light of what professional photographers do: create the image and, as the creator and copyright holder, sell you one or more reproductions.  In the present instance, just because you paid for the website design (and the underlying programming it took to create it), doesn’t mean you own the copyright to it.  Therefore, when hiring an independent contractor to create any kind of work that is potentially eligible for copyright protection, whether a graphic design person who creates your copy logo to the copywriter who writes the text for your brochures, to the website developer in the example above, it is prudent to always address copyright issues with independent contractors in writing before he or she (or the company they work for) begins whatever they have been commissioned to create.

Tip!  Under the federal Copyright Act, copyright in any eligible work generally remains with the non-employee contractor who created such a work.  However, there can be two exceptions to this.  First, if the work is a “work made for hire” as defined in the Copyright Act and the parties have agreed to this in a written Work Made for Hire Agreement in advance (though some jurisdictions at the time of this writing may uphold written “work made for hire” agreements entered into after the fact), then the hiring party will be deemed under the law to hold all copyright in the work as though the hiring party was the originator of the work itself.  If it is not a work made for hire, then the work product can still be assigned to the hiring party, using an Assignment of Copyright agreement, and the independent contractor, as original copyright holder of the work, will have transferred such copyright in the work product to you.  To more about what qualifies as a “work made for hire,” please read below.