On 2 Nov 98, Gill, Kathy wrote:
> I'd like to put the fear of god into this developer person. There is
> nothing in the contract about the developer retaining copywrite (so that
> means 'work for hire' is default, does it not?). And pulling the site --
> come on!
This issue was addressed at length here on the list not too long ago. It
was made unequivocally clear by both lawyers and others who contributed
to the thread that unless a designer explicitly signs a document ceding
copyright, the client does not have any claim on the creative materials
produced. The designer holds the copyright plain and simple, and has
every right to do with the material as she sees fit, in the absence of a
contract stating otherwise.
Here's a copy of a post I sent at the time of the previous thread (June
5/98):
*****
> 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, in writing,
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 financial loss 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
-----------
Brent Eades, Almonte, Ontario
E-mail: [EMAIL PROTECTED]
[EMAIL PROTECTED]
Town of Almonte site: http://www.almonte.com/
Business site: http://www.federalweb.com
____________________________________________________________________
--------------------------------------------------------------------
Join The Web Consultants Association : Register on our web site Now
Web Consultants Web Site : http://just4u.com/webconsultants
If you lose the instructions All subscription/unsubscribing can be done
directly from our website for all our lists.
---------------------------------------------------------------------
