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.

Go to Sample Contracts and Other External Links

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.

Some sample contracts for website designs and other useful information:

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.

Step-by-Step Guide to Hiring a Web Designer- START HERE; very useful resource on what you need to do and think about before hiring a web designer

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.

Anonymous said...

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.

What's in a name? A copyright?

Question asked on 28 July 2011

My friend and I want to start a business knitting tiny purses, pouches, etc. My friend wants to name our business after an exotic herb.
I told her that I once ate at a restaurant in another state that has that name.
Does that restaurant have copyright over the name? Or is it ok to use it because we're in a different state?
We don't want to get into any trouble, but it's really a good name.


Thanks for asking. I've encountered similar questions on other forums, so this is a good opportunity to post my response here rather than just in the Comments box.

Brief Answer: Yes, it would be okay for you to name your knitting/crafts business with the same name already being used by a restaurant.

Basically names, titles and short phrases are not protected by copyright. They may, however, be protected  by trademarks. Trademarks relate to goods and services. If you were to open a food cart, cafe or restaurant with the same name as that restaurant, and they've registered their trademark, then no, you wouldn't be able to use the same name for your business.

Since your business is completely unrelated to the restaurant (not because you're in a different state, but because you're in a different type of industry. i.e. knitting vs. food), then you can use the same name.

By the way, if that restaurant had been in your state, and they had registered the name as their business name/trade name, you may want to consult a lawyer or check the trade/business name registration rules in your state.

For differences between trade/business names and trademarks:

• If your business is in Australia, see this external site for more information
• If in the US, see this site

Other sources:
US Copyright Office FAQs

Using images of artwork on merchandise

Question (asked on 27 July 2011 by Anonymous on the Post Your Questions Here page):

What's the rule in featuring Artwork on Merchandising (T-shirts, mugs, etc..) in the following scenarios:

1. I own the painting and the artist is still alive.

2. Somebody owns the painting and the artist is still alive.

3. Somebody owns the painting and the artist is dead (with heirs still alive).

4. A 'classic' painting i.e. Mona Lisa owned by a Museum.

5. A painting owned privately with the artist dead with no traceable heirs.

In the above scenarios who really 'owns' the artwork and who has the rights to replicate the work for merchandising? 

Great questions! These are probably of interest to many others as well.

The brief answer is: the artist (or copyright owner, i.e. an assignee) retains all rights for the duration of the copyright term, despite having sold the artwork itself.

Long answer with explanation:

Some general principles first, before I give my response to each scenario.

Copyright attaches to a work from the moment of its creation, but the copyright actually protects the expression of the idea, not the tangible physical work itself. In the case of paintings, then, the copyright remains with the copyright owner (usually the artist, unless s/he assigned his/her copyright to someone else, e.g. for a commissioned work), and does not pass on to the buyer of the painting. The artist is therefore free to reproduce photos of his/her painting even after selling the painting. In fact, in many jurisdictions, artists enjoy resale rights. If the first buyer of the artwork resells it while the copyright subsists, the artist is entitled to a portion of the sale proceeds.

In general, copyright subsists for the lifetime of the creator plus 70 years (under US law, if published after 1 January 1978, in Europe and Australia and other countries) or 50 years (in other jurisdictions that have not yet adopted a similar extension, e.g. the Philippines) after the creator's death. So even upon the artist’s death, the copyright may still subsist and is rightfully owned by the creator’s heirs during those 70 years. If the artist dies intestate (i.e. without heirs), the laws of his country on intestacy will apply. In some cases, the State (government) may own that copyright.

To put an image of the artwork on T-shirts, mugs, etc., you would need permission from the copyright owner (artist) or the owner’s heirs if the copyright still subsists. Such permission may simply be a written permission for no fee, or may take the form of a formal copyright license with a fixed fee, or a fee plus royalties from the sale of the products.

Now to the scenarios.

1. I own the painting and the artist is still alive> Copyright still belongs to the artist or his/her assignee, and not to you. You need permission from the copyright owner to use the image on your merchandise.

 
2. Somebody owns the painting and the artist is still alive> Same as #1.

 
3. Somebody owns the painting and the artist is dead (with heirs still alive) > If the copyright is still in effect (within 50 or 70 years, as the case may be, after the artist’s death), then same as #1.

 
4. A 'classic' painting i.e. Mona Lisa owned by a Museum.> The Mona Lisa is already in the public domain, as it has been centuries since Da Vinci’s death. The fact that the Louvre Museum owns the tangible object does not mean you need their permission to use the image of the painting on your merchandise. Please note that just because a painting is ‘old’ may not mean it is in the public domain. Check when the artist died, and which law applies to his/her rights.

 
5. A painting owned privately with the artist dead with no traceable heirs. > Not sure what you mean by ‘owned privately’. Private ownership as against public ownership of the state, perhaps? This will depend on whether the copyright still subsists, and the law that applies to the artist having died without heirs (see above). It may well be that the artist’s State/government owns the rights.

Source:

http://www.copyright.gov/help/faq/faq-duration.html#duration

Question (asked on 28 July 2011 by Anonymous on this post)

Follow on on question #4. How about rights for the one who photographed the image? i.e. can I just get any Mona Lisa photo in the Net or do I need to go to the Louvre and photograph it myself? Relatedly if I get a photograph (i.e. from the 50's) and I stylized or made a B&W photo colored, would that be infringement?  

Brief answers: 

a) You need to have the right or permission to use any photo of the Mona Lisa that you want to use for your goods. 

b) If the copyright to the 1950’s photo still subsists, any modification you do to it is infringement of the owner’s exclusive right to modify and create derivative works.

Long answers with explanations:

Pretty much any photo you download on the internet will have a subsisting copyright. Many of them are available for use free of charge for non-commercial purposes.

Since you are creating work you intend to sell or earn money from, I suggest you do one or combinations of the following:

1. Use pre-existing images but comply with their owner's conditions, including obtaining licenses, probably for a fee, for use in commercial work;
2. Create your own images by taking your own photos or creating illustrations;
3. Hire a photographer or illustrator and have them assign their copyright to you; and
4. Same as #3 but instead of having them assign their copyright (for which they may charge more), ask for a license to use their images as you require (this may result in lower license fees but entitle the copyright owner to royalties from your sales as you both agree on.

As to stylizing a photo from the 1950's, assuming the copyright of that photo still subsists, then you would either be creating derivative work from the original (if the change is substantial) or modifying the original. In either case, the copyright owner has the exclusive right to create derivative works and to modify the original. You would therefore still need the owner’s permission.

If for some reason the copyright no longer subsists in the 1950’s photo, then being in the public domain, you are free to do what you like with it. However, your derivative work will only have copyright to the extent of your work, and it will not restore the copyright to the original.

Please note that there are some subtle differences in the way different countries treat derivative works, but general principles should be similar.

Source:
US Copyright Office document on registration of Derivative Works

Copyright and Writing

Some of these are rewritten from answers I posted on Yahoo Answers. Questions have also been reworded and combined from related questions.

Questions

Question 1: I'm writing a novel and I use the title of a famous song as my title. I also quote the entire song in my book. Is this copyright infringement?


Question 2: Can I use classic fairy tales (e.g. Cinderella, Snow White, The Little Mermaid) freely?


Question 3. Can I publish a book based on copyrighted characters? I want to write books using characters from a famous TV show and comic books, but I'm doing so independently of the TV show producers or the comic book creators.

Answer to Question 1

I'm writing a novel and I use the title of a very old and famous song as my title. I also quote the entire song in my book. Is this copyright infringement? Could the song already be in the public domain?

Titles are not protected by copyright law. In some cases, titles are registered as trademarks, so you might want to double check on the trademark status of that title.

Use of quotes can be considered 'fair use' in some instances (these rules differ from country to country). Fair use is an exception to copyright infringement (i.e. you can quote with attribution without having to pay royalties to the copyright owner). In the US, they usually apply to non-fiction. HOWEVER, if you quoted the ENTIRE song, that's beyond fair use, and you'll have to get permission to use the song, and/or a license from the copyright owners. This might mean (depending on the terms of the license) a one-time fee or a fee plus a percentage of royalties from the sale of your novel. Or they might be happy to get free publicity by having the song appear in your book.

In general, always obtain permission before using quotes or samples from copyrighted work in your own work, particularly for fiction, as soon as possible, prior to publication of your work.

As to whether the song is on the public domain: it depends on how old the song is, and when and where it was published, whether it was registered, etc.. Copyrights are valid for the lifetime of the authors and 50 to 70 years (depending on the country, 70 years for the US) after the authors' death. There are other terms for certain types of works. Once the copyright has expired (for example the lyrics of the star-spangled banner), then you are free to use it at no cost. To check if the work is in the public domain, here are some useful resources:

• A very helpful table of works in the public domain according to the US copyright law: http://copyright.cornell.edu/resources/publicdomain.cfm
• To check if a work is in the public domain in the Europe: http://www.outofcopyright.eu/calculator.html

Source(s):

http://www.copyright.gov/help/faq/faq-protect.html

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
http://en.wikipedia.org/wiki/Fair_use
http://www.copyright.gov/help/faq/faq-fairuse.html
http://www.copyrightadviser.com/2011/07/when-should-i-copyright-my-work.html

Answer to Question 2

Can I use classic fairy tales (e.g. Cinderella, Snow White, The Little Mermaid) freely?

Very old fairy tales (by Brothers Grimm, Hans Christian Andersen, etc.) are already in the public domain. Copyright protection lasts for the lifetime of the author and 50-70 years after his/her death (depending on the country; in the US it is now 70 years after death, called the 'Mickey Mouse Protection Act'). So for very old works, the copyrights can be presumed to have expired. This doesn't allow you to plagiarize these works per se; it does allow you to use these works (e.g. publish a new picture book, etc) without having to get permission or a license to do so from the copyright owner/s.

Source(s):
http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

Answer to Question 3

Can I publish a book based on copyrighted characters? I want to write books using characters from a famous TV show and comic books, but I'm doing so independently of the TV show producers or the comic book creators.

Sounds like you're writing fan fiction. Copyright issues are murky with regard to fan fiction. Strictly speaking, names are not protected by copyright, but can be protected as trademarks. The idea of copyright protecting the character itself (who he/she is, what he/she does) is unclear.

As long as you don't sell your work and participate in fan fiction sites, you might be ok. But the best thing to do is always seek permission from the copyright owners as soon as possible and prior to publishing your work.

If you want to publish and sell your work outside the fan fiction space, then you'll need to get a license from the copyright owners (DC comics/ networks/ producers) to use their copyrighted (and often, trademarked) characters. This might mean a one-time fee only, or a fee plus a percentage of royalties you earn from your stories.

When should I copyright my work?

Short answer: Copyright attaches to your work from the moment of creation.You own the copyright to all your drafts. Whether on paper or purely electronic, from the moment you write, you own the copyright. Registration of copyright is no longer a prerequisite for owning your intellectual property.
 
Read more:

Unless you explicitly assigned your copyright in a binding agreement, you own all rights to your writing, including submissions to writing groups, workshops, and magazines.

Your book contract, even contracts with magazines for short stories, will require you to license, perhaps even assign, your copyright to the publisher. You do not need to register your copyright before signing such contracts as you already own the copyright to your work. However, your publisher will either register or have you register  your work formally with the copyright office, prior to distribution of your work. (In Australia, there is no registration office for copyrights).

When should I register my copyright?

Short answer: Copyright attaches to your work from the moment of creation. Registration is no longer necessary under copyright laws in most jurisdictions.  
(N.B. This is a different rule from patents and trademarks, where registration is essential.)

Your copyright ownership, either registered or unregistered, is effective in all countries that have signed the various copyright treaties.

Read more:

While you own what you write, you do not own any copyright to your ideas. Only expressions of ideas may be protected as intellectual property.

Registration is mainly for purposes of evidence in cases of infringement lawsuits. The date on your copyright registration will prove the originality of your work if the date is earlier than the other party's registration.

Because copyright attaches to a work from the moment of creation, you may put 'all rights reserved' or 'copyright [insert year]' on your work without need of registration (as I've done below).

As many experts will advise, do not put copyright marks on your submissions, queries or proposals as this will mark you as an 'amateur', precisely because everyone in the publishing industry knows that you automatically own copyright to your work.

It would be a good idea to put copyright marks on your blog, website, photos, etc., as most internet users (I hope) are more circumspect about copying work that are appropriately marked.

Merely publishing work without putting a copyright mark DOES NOT put your work 'in the public domain'. If you want to make your work broadly accessible and you wish to freely allow reprints or dissemination of your writing, you may wish to use one of the Creative Commons licenses.

Feel free to send questions as comments to this post. For advice on specific instances or cases of infringement, please see disclaimer below.

Would you like to learn more about copyright and licensing? Post some topics you want me to cover  as comments to this article. Or ask a question on the Post a Question page. 

Below are some useful links:

US Copyright Office

Australian Copyright Council

World Intellectual Property Office

Creative Commons

Article originally appeared on www.cattorresv.com published by the same author.

Copyright © C.A.T. Torres V. 2011
Except as permitted by the copyright law applicable to you, you may not reproduce or communicate any of the content on this website,including files downloadable from this website, without the written permission of the copyright owner. You may, however, provide back links to this page.

Part VB and section 183 entitlements reserved. For information about Part VB (educational use) and section 183 (government use) visit www.copyright.com.au and www.copyright.org.au.