Website operators and business owners may wonder what rights they hold to use and control their own website. “Ownership” essentially comes down to copyright law. Each website is simply a bundle of unique, separate site elements such as custom source code, images and graphics, videos, software and other applications and text. Of course, these elements are contained within various website and database files hosted on a server working in concert to display and allow a website to function. Understanding how any individual or business obtains rights to exclusively, or non-exclusively, use and control each of these separate elements from the developer, creator or some other third-party is the key to knowing what ownersip rights website operators actually have.
Who Owns My Website Under Copyright Laws?
Even though you may own the domain name or content on your website, the ownership rights to the website design and separate website elements may reside with the creator. If that is the case, you are merely left with an implied, non-exclusive license to use your website and the separate website elements created for you or your business.
If you hired a designer or other third party to design and create your site, he or she may legally hold the copyright to your website. Under United States copyright law, creators are presumed to own the copyright in the works they create. This means that whoever creates the various aspects of your website will be presumed to have ownership of the copyright in those specific elements (the concept of separate website elements is discussed more below). Unless you are the actual designer of your website and each separate element, then the only way you can legally acquire the exclusive ownership rights to your website is by having a signed writing with the creator transferring all of those rights exclusively to you. Under the provisions of the United States Copyright law, a transfer of exclusive rights in a copyrighted work must be in writing and signed by the owner of the rights. Thus, if you engage the services of an independent web site designer, you do not own exclusive rights to the website or certain separate elements of your site unless you have a written website development agreement stating this. There are also other important reasons why you should always use a website development agreement.
Separate Website Elements Ownership
If multiple people contribute to the design of your website and these contributions are distinguishable, there may be separate copyright owners of each separate element. In other words, the different aspects of your website may be owned by whoever created those aspects. For instance, there is a copyright in the design or website template (the overall “look and feel” of the site), and there are separate copyrights in the content contained on a website such as the text, images, graphics, videos. Images and other elements such as the header are all separate website elements that contribute to the overall website design. If the website designer created each separate element and not just the website template, he or she would likely hold the copyright to each element.
Collectively, the overall look and feel of your website design may be protected “trade dress” if the design is distinctive enough. This is yet another evolving area of Internet law where established and consistent guidelines are not yet in place. On the other hand, any elements downloaded from the internet are already in the public domain, assuming that such elements do not contain copyright restrictions. If any of these elements have been created by you, such as your logo, your photo, animations, etc. then you own the rights to those specific and separate elements of your website.
However, you should keep in mind that any actual photographs you provide may actually be owned by the photographer that took those photos. The photographer would be considered the author of that particular “work”. Unless you have ownership rights through some contractual arrangement when any photos or images were created for you, the photographer would likely own those images.
Another distinct element is the text contained on your website. Obviously, if that has been created by you, you own the copyright to the text. But, it is not simply the text that appears visually on the screen. The way in which text is formatted and presented in the form of HTML, or even VRML coding is also protected. If your website designer created that coding, then the coding, as distinguished from the text itself, may be owned by the designer. Similarly, the manner in which the website designer has set up the hyper linking on your site may be owned by the designer.
The bottom line is that you may own the text, but the designer may own the way the text is configured and coded on your website. Again, the key is to obtain a written website development agreement transferring all of these rights to you or your business. Otherwise, it may not be clear who owns your website!
Beware Of Third-Party Copyrights
Your website development agreement should make it clear that your web designer must create or obtain a valid license for your business to use all third-party materials, including photos, graphics, and other images. I cannot stress the importance of this precautionary measure. In fact, all contributors to the design of your website should “warrant and represent” in the agreement that their work is original and not in the public domain. This should be clearly stated in your Website Development agreement without exception.
I have read my fair share of letters demanding that my clients immediately take down certain images used on their websites. Usually, the developer has incorporated some image they lifted somewhere else without permission. It is imperative that your website developer secure the necessary rights you need to legally use their creative contribution and that those rights are transferable to you. I also have always recommended using indemnification clauses in website development agreements as well. In essence, you want the developer to agree to reimburse you and hold you harmless for any damages and all costs you may incur as a result of any copyright infringement or violation of any other right by the developer or other contributors to your site in the creation of your business website.
Obtain Rights to Creative Works
Businesses should always enter into a comprehensive website development agreement with the website developer(s). This agreement should always establish a ‘Work for Hire’ relationship. As a safety net, the agreement should also always include a complete transfer and assignment of all ownership rights, including the copyrights, to your website template and to each separate element. Website developers may have to obtain a valid license for the website “owner” to use any third party materials, including photos, graphics, and other images. All contributors to the design of a website should “warrant and represent” that their work is original and not in the public domain.
Cease and desist letters demanding the immediate takedown of certain images used on business websites are common. Usually, the website developer has incorporated some image obtained without permission or outsourced such tasks to third-party subcontractors. It is imperative that website developers secure the necessary rights to legally use their creative contributions and that those rights are transferable through a written agreement.
Obtain Original Design Files
Websites are developed often in conjunction with custom graphics or images created by the developer or their team or even an updated or new company logo. Always obtain the original design files of any works you have created for your business. Do not just obtain the .jpeg or .tif images of any logo or other work you have created. For example, if you have a logo created, the designer will likely use Adobe Illustrator (.ai files), or some similar application, to create the logo. Your e-book cover art, brochure or similar cover art may be created using Adobe Photoshop (.psd file). Your written agreement with the developer should establish your right to receive the original file(s) from the applications used to create the work, such as the .ai or .psd files with the original layers. The Agreement should obviously be signed before the work commences and any payments have been remitted.
Many developers will not release the original files to you and will hold onto what they create to protect themselves. Usually, this really depends upon the price. Some developers will charge much more for the full bundle of rights to whatever they create By having the original design files, any new designer (or you) can make any future changes easily without having to recreate the work. This will ultimately save you time and/or money. In the end, you want complete control over your intellectual property, and this includes obtaining all original design files.
All online entrepreneurs should understand what a ‘Work for Hire’ is and how to protect intellectual property, including website designs and each separate website element (the overall design, images, text and even website coding are all protectable elements). The rights to website template designs, graphics, logos, etc. belong to the creator and not the owner who actually paid for and directed the work to be created.
Failing to understand how to properly transfer rights to creative works is a common mistake for startups developing websites.