Question of the Month of December, 1999 - Michel Fortin
The following is Michel Fortin's brief answer to a question selected among hundreds if not thousands that he receives each week. For more information on critique consultations, see http://SuccessDoctor.com/booster.htm.
From the Internet Marketing Challenge Private Discussion Forums
"I'm a web developer and a client of mine wants me to take over the development of an existing web site. This raises many questions, such as who owns the material and the overall look of the web site? My customer likes the look of the site but wants to expand it. The problem, however, is that the site and original webmaster are located out of the country and hard to reach. My understanding would be that the copyright would belong to my client. And the design, being a 'work-for-hire', would be owned by my client also. Am I right here?"
Before I answer, I must offer a small disclaimer. I am certainly not a lawyer and this information should not be construed as legal advice. As in all legal or contractual cases, I highly recommend that you consult with a competent, legal professional. However, in the meantime I strongly suggest that you to visit these two informative sites, namely "The 10 Big Copyright Myths Explained" at http://www.templetons.com/brad/copymyths.html and "The Copyright FAQ" at http://www.aimnet.com/~carroll/copyright/faq-home.html.
I also highly recommend a great book on the subject. Much of the response here is based on it -- it's called "Electronic Marketing" by Margo Komenar (the chapter is entitled "Making It Legal") and published by Wiley and Sons (see their site at http://www.wiley.com).
Here's the answer: Unfortunately, copyright is still owned by the original designer or webmaster, even in this case. There must be some kind of written assignment (such as a signed letter stating "I, Mr. Designer, hereby transfer all copy rights to you, Mr. New Owner."
According to copyright law, the right is still owned by the original owner (or the work's author or creator) until and unless the right is transferred, in writing, to the new owner. If you ignore this, it could come back and bite you.
However, here's the "if." If the customer has received an assignment from the original webmaster, then the customer owns it. "Works-made-for-hire" (such as paying someone for designing a site) doesn't constitute an assignment -- which is often the misconception. If the customer hired this unhelpful webmaster and paid him, but no written assignment was made, unfortunately the unhelpful webmaster is still the legal owner of the copyright.
Assignments are generally made in a contract -- usually in the one that the webmaster and your client have signed to get the work done. According to copyright law, in the absence of an assignment all works made for hire (except for those made by employees, which I'll get back to later) are owned by the author of the said work -- even if he or she got paid for doing it.
This is why it is important that, if a designer takes on a project and signs a contract with a client, there must be a clause in that contract, before work commences, indicating that the designer is relinquishing the copyright to the client. If there is no such mention, the designer is, in all cases, the owner of the copyright -- even when commissioned by a client.
Now, here's the exception. Employees automatically relinquish copyrights to the employer -- this is the only exception. Both rights and risks of employees are always assumed by the employer -- if not otherwise indicated in, say, an employment contract.
If you modify, upgrade or alter a work, where the permission for which has been given to you by the owner of the original copyright, the author or owner of the original work is still the owner of the modified work -- under copyright law, this is called "derivative work." So modification by you does not transfer any rights -- you are not even the owner of the 'modification'.
The rights of the original copyright owner remains exclusive, until and unless completely assigned to you in a written agreement. To clarify, a copy "right" is really composed of 5 different and exclusive rights, under international law:
- Reproduction right: The right to duplicate or imitate.
- Modification right: The right to modify. A new work based on a preexisting
work is called "derivative work" and still owned by the original copyright holder.
- Distribution right: The right to distribute copies (i.e., for commercial purposes).
- Public performance right: The right to recite, play, act or show the work in public.
- Public display right: The right to show a copy of the work (by means of film,
slide, photo, image, TV, etc) in public.
In addition, certain types of work also have "moral rights," which limit both the modification of the work and the use of the new author's name without permission of the original author.
Bottom-line, the owner of a copyright can assign any one of the 5 rights above to someone else. Consequently, until and unless the original owner assigned the "right to modify" to you (in a written agreement, and this goes beyond simply giving you the "permission" to modify) you are NOT the owner of the modified (derivative) work -- the original owner still is.
Michel Fortin
The Success Doctor
P.S.: This question (and my answer) were originally posted in the Internet Marketing Challenge Private Discussion Boards, where members can ask questions from a panel of Internet marketers. For more info, please visit http://SuccessDoctor.com/IMC/
About the Author
Michel Fortin is an author, speaker and Internet marketing consultant dedicated to turning businesses into powerful magnets. Visit http://SuccessDoctor.com. He is also the editor of the "Internet Marketing Chronicles" ezine delivered weekly to 100,000 subscribers -- subscribe free at http://SuccessDoctor.com/IMC/.
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