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Saturday, July 30, 2011
Copyright Considerations for Website Designs
Previously Answered Question similar to one asked on Yahoo! Answers on Website Design and to which the Copyright Adviser responded. The question has been rewritten for purposes of clarity and to be more general. The Copyright Adviser's answer has been expanded to include more information.
I have an idea for a website but I'm not a programmer and can't create the website myself. I'm afraid a programmer might steal my idea and create the website for himself. Someone told me I can't copyright my idea. How do I protect it when I ask someone to create the website? Can I still own the copyright of the website even though someone else created it for me?
Brief Answer: Enter into an agreement or set of agreements with the programmer to 1) protect the confidentiality of your idea through a Non-Disclosure Agreement (NDA); and 2) have the programmer assign his/her copyright over the website to you.
Long Answer with Explanations and Alternative Suggestions:
It is true that you cannot copyright (or patent, or register as a mark) your idea. Ideas are not intellectual property. But you could treat an idea as confidential information. What you can do is to approach possible programmers as contractors who will execute your idea and create a website from it. Prior to communicating your idea, you can have them sign a non-disclosure agreement (NDA), to oblige them to keep your idea confidential, whether you choose them as your contractor or not. You can include a non-competition clause
Once you decide to engage them, you should (of course) execute a contract with them. As creators of the website, they will own copyright over it. Your contract with them should therefore have provisions assiging that copyright to you. An assignment is a conveyance of rights, like a sale.
The programmer/contractor may want to retain ownership over some parts of the website code, perhaps some images or other work they contribute. It would be good for all parties concerned to set out in the agreement which parts of the website will be assigned to you, and which parts they retain ownership over.
It would be reasonable for the programmer to require a higher payment for an assignment of copyright. They could also license their copyright to you, rather than assign it. A license is a permission to use, rather than a 'sale' of rights. You can negotiate for an exclusive license, so that they cannot license it to anyone else, and they cannot even use the copyrighted material themselves. (See differences between and exclusive license and a sole license). A license may involve a one-time fee plus recurring royalty payments from your revenues, or an annual fee. A license may be perpetual or for a specific duration. It may be geographically restricted or worldwide, restricted to purpose (e.g. commercial vs. non-commercial), revocable or irrevocable, royalty-free or not.
Financially, a license may be more affordable or appropriate for your purposes than an assignment of copyright. If you decide not to use the website anymore, you can terminate the license (according to the termination clause in your contract) and they retain ownership over the design. It depends on what your commercial intentions are for the website.
In the end, you will need to realize that since the intellectual property (IP) will be created and owned by someone else, although it is from your idea, that you may have to pay premium prices to obtain the rights you want over such IP, particularly if you hire high-quality website designers. Have your lawyer advise what rights and contractual terms would be most appropriate for your business or private intentions.
Otherwise, it may be useful to learn a bit about website design yourself. Tools such as Blogger, Wordpress, Microsoft Publisher and the like can make website design simpler for laypersons nowadays. If your website will not be for a business or for commercial purposes but for your own non-profit purposes, it may well be worth it (and cheaper) to create the website yourself with minimal training and resources.
Disclaimer: Please see Copyright Adviser's disclaimer at the bottom of this page relating to external links, and the nature of advice provided on this website. Please consult a lawyer before entering into any contracts.
Resource Nation - meant for people like you, the Client of a website design provider
Wilson Web - this will give you an idea what website designers themselves start with in terms of contracts
Related question asked on 30 July 2011 on the Questions page of this website.
What kind of lawyer do I need to get to draw up a contract that requires the designer(s) of my website to sign that will state that I own full copyright ownership of the website? And do you know how much it will cost me to have a lawyer perform this for me?
Answer: Ideally you want to get a lawyer with expertise or specializes in intellectual property, and/or who often deals with contracts in the same industry (i.e. website design). Unfortunately I cannot advise as to lawyer fees, as these can vary from lawyer to lawyer (depending on their reputation and experience), from state to state, and from country to country.