Why Your Site Might Have A Critical Copyright Problem

by Richard A. Chapo

Mention copyright and most people immediately think of free music downloads and music companies suing teens. The truth of the matter is copyright extends far beyond just music. In truth, it is an archaic law that causes a host of problems on the web. In fact, most sites have a critical copyright problem and don’t even know it.

Copyright Basics

Copyright is best explained with an example. Let’s assume I am laid off from my job. While collecting unemployment, I decided to finally write the great American novel. To my surprise, I tear myself away from the new Oprah channel and actually do it. Even more shocking, a publisher picks up the book. I’m going to be the next Stephen King! Okay, probably not.

What does this have to do with copyright? In the above scenario, intellectually property law conveys copyright to me automatically when I write the book. This makes sense. I am the author, so why should I have to take any particular steps to nail down the fact I own the copy? I shouldn’t. Of course, I can go ahead and file with the Library of Congress to really nail down my rights, but such a step is a voluntary choice.

Web Design Problems

This “author” concept does not translate well to the web. The problem is the automatic assumption of ownership in the work the author creates, particularly as it relates to website design. Most people hire a third party to handle the design. Since the third party creates the design, intellectual property law gives that designer the copyright ownership and not the site owner. Read that sentence again.

But I Paid!

Ah, but you are undoubtedly thinking this can’t be right since the designer was paid to do the work. The presence of a payment has no bearing on copyright. Think about that for a minute as it translates to the web. How many sites – prominent sites – do you think there are where the owner of the site doesn’t own their design because a third party designer did the work? The numbers must be huge.

Does It Matter?

Ultimately, you might be wondering why this really matters in the day-to-day running of your online empire. There are two central reasons. The first is your designer could reuse all or part of the design for another client, even one of your direct competitors. That should be enough reason right there to deal with this issue.

The second problem arises when you seek to sell your site. Ask yourself a simple question. Would you buy a car from someone who didn’t own it? No? Well, why do you think anyone is going to be your website from you? Your designer owns the copyright, not you. More than a few online deals have imploded for this very reason.


Is there any way to deal with this copyright problem? Yes, but the solution depends on the timing of the design. If the design hasn’t been done yet, you can deal with the problem in one of two ways. The first is to hire the designer as an employee of your company. Under copyright law, the work done by employees is automatically transferred to the employer. The second option is to include copyright transfer language in the contract you sign with the independent designer. Most people go with the second approach for the obvious reason that they don’t need a full time designer much less have the budget for one.

What if your site has already been completed? Is there any way to put the horse back in the barn? Yes, but it can be tricky. The best approach is to ask the designer to sign a copyright transfer agreement to clean up the mess. The vast majority of designers will do this without causing a fuss, but some will ask for additional compensation. Sometimes you simply have to pony it up.

Copyright is not exactly a subject most people find compelling. I’m an attorney and I find reading about it is a good way to get to sleep late at night. This doesn’t mean that it isn’t incredibly important, particularly when it comes to website design. If you haven’t already, take the time to make sure you have your ducks in order when it comes to copyright ownership for your site. You will be glad you did down the road.

Richard A. Chapo is with SanDiegoBusinessLawFirm.com – where he provides and negotiates copyright transfer contract agreements for clients.