On 2 Sep 98, Suzanne wrote:
> No Andreas, you're very wrong. In the US, the commissioner ONLY owns the
> copyright if the creator signs a "work for hire" contract assigning the
> rights to the commissioner and if the work falls into one of nine
> narrowly defined categories. The employer only owns copyright
> automatically if the work is created by an employee.
Yes, this is quite correct; as well, under the (admittedly slim) body of U.S.
case law on the subject, a client and designer must agree *before* the
project begins that the project is indeed a work-for-hire one. (However,
there have been diverging legal decisions as to whether this agreement
must be in the form of a specific written contract or not.) Either way, the
client cannot unilaterally assert during or after completion of the work that
the relationship was a work-for-hire one, and thus claim any ownership of
the creative materials produced.
The U.S. Copyright Act is the statute that guides case law in this respect,
and it stipulates that "the parties expressly agree in a written instrument
signed by them that the work shall be considered a work made for hire."
(It is the definition of a "written instrument" that has resulted in divergent
case decisions in the past -- one court said the instrument must be an
actual contract, while another held that an endorsement stamp on the
back of a cheque paid to an artist, describing the cheque as "payment in
full for the services rendered on a work-made-for-hire basis", was
sufficient. [Playboy vs. Dumas, 53 F.3rd 549 (2d. Cir. 1995)])
Note too that the points above pertain, as far as Web site designers are
concerned, principally to original graphics, logos and similar visual
creations that you have made for a site, and perhaps to the arrangement
on the screen of these elements (the "look and feel"); it does not
necessarily have relevance to HTML coding, CGI scripts, etc. These
components -- where they are covered uner existing law at all -- are more
likely to fall under patent protection than copyright statutes.
Another point is that clients are understandably prone to push for work-
for-hire contracts, on the basis that if they are paying good money for a
creative work that represents them in the larger world, they are reluctant
to leave its ownership (and potentially unwanted future use) in someone
else's hands. The solution for designers here, if an otherwise appealing
project comes with a work-for-hire requirement attached, is to build into
your fee compensation for any inconvenience, etc, that may result from
ceding copyright of the work, and perhaps to include in your contract a
clause that guarantees you the right to use your work in your portfolio,
marketing material, etc. (Remember that whe you cede copyright to a
client, you lose the right to reproduce your work in *any* way without
permission.)
WC old-timers will recall when Ivan Hoffman, a noted "cyber intellectual
property" lawyer, used to be active on the list; I highly recommend his
very informative site for more information on such topics.
http://home.earthlink.net/~ivanlove/index.html
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Brent Eades, Almonte, Ontario
E-mail: [EMAIL PROTECTED]
[EMAIL PROTECTED]
Town of Almonte site: http://www.almonte.com/
Business site: http://www.federalweb.com
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