Forums: Discussions for entrepreneurs and small business.

When hiring a photographer, graphic designer, website developer, or any other third party creative service provider, the popular opinion is that once the customer pays for the work, the customer owns it.  Not so.

Under United States Copyright law, the creator of a work continues to own the copyright to such work unless there is a written assignment of that copyright to the customer.  In the absence of such a written assignment, the customer would be granted a license to use the work, while the creator / copyright owner maintains the ability to reuse or resell the work as he or she pleases.


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Pepper Law Group, LLC
21 E. High Street, Suite D
Somerville, NJ 08876
informationlaw.com
Now available on DVD!
The Legal Considerations of Starting an Online Business

That is so true. There should always be an agreement of who owns what, or some type of release agreement under the customer.

In my contract with a publisher, it was expressly writen as to the conditions under which my written material was owned by the publisher, and when it would revert to me. This became a matter of importance when the publisher went bankrupt, while the book continued to sell. At that point, the written contract indicated I was free to sell "my" words to another publisher. Without that contract, I would have been dragged down totally by the fallen publisher.

What gets a bit sticky is what`s meant by "creative product."

If I pay a Web designer for the look and feel of a site, does that designer have the right to take down the site because they`ve decided that they don`t like it anymore? Do they own it enough that they can sell my site to someone else?

It`s been my understanding, which may change now, reading this thread, that the definition of ownership rest on the capability to sell something. Is there a legal definition of "to own?" (ownership).

No, Craig, if the designer has not transferred ownership IN WRITING to the client who commissioned the work, that client may not alter the work in any way. Designers have often had sites shut down for this reason.

If you want to not only pay for the labor to create the work, but also own the full copyright to it, you have to specifically negotiate for the sale of that right with the designer. Most designers (in the real profession) charge for the value of that ownership. And keep in mind, that they are in no way obligated to sell you that right if they don`t choose to.

When hiring design work, make sure the designer is very clear in their contracts about what license you have to the work, what you are allowed to do with it, for how long and how you may use it. Have these conversations up front so there is no misunderstanding later. Consult with an IP attorney for advice.

It`s really a good idea for everyone, both clients and designers, as business people to get themselves educated about copyright and trademark laws.


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Danielle Keister, The Relief Virtual Assistance
Administrative Support Services for Business Consultants and PR Professionals | Founder, Virtual Assistance Chamber of Commerce

Dayum! I didn`t know this! Thanks for the info, Danielle....

I absolutely agree. Get familiar with the copyright and trademark laws.

I have oven wondered...
If I designed a site, but don`t maintain it. Soon someone must maintain it. As time goes, the structure will likely change with the required updates. Should I, the designer, still be able to claim I created that site, months or even years down the road?

When dealing with creative industries, you really have to cover everything. That`s why I can only say...

Get familiar with the copyright and trademark laws.

They may not change daily, but it is good to refresh your knowledge base from time to time. You never know... something might have changed.


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Vincent Wilcox (a.k.a. KRAKR)
Drummer
My band: Letters Make Words

Oh great,  there goes my oemlogo 

Hey there Geno... :-D
Danielle, or Pepperlegal, what exactly is the status of a logo? Has anyone yet worked out how many elements of a previous picture can/must be changed before it`s considered "original?"

Yes that is the copyright law. But there are limitations.... The Designer only owns the code.... Not the content of the web site. The content of the web site belongs to the customer (text, images, logo). The copy right law specifies what belongs to the designer and what belongs to the Customer. If you provide your designers with your own images... He can get in trouble for using them elsewhere.
Now what you can do is negotiate an "Exclusive" ownership with the designer. 
 
Another thing that most designers are doing is charging you royalty fees for your sales on your shopping cart. The royalty fee can be for 1 to 5 years but no longer than that (and they have the right to go through your database/admin side to see all of your sales).

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Edgar Monroy
Web Developer / Owner / Consultant
When starting your own business the need to "know-how" is greater than money!
http://www.nuevolution.net

I wanted to add that this isn`t just for photos, websites and so on...if you have an idea for a new product and get someone with more technical expertise than yourself to develop the propotype from YOUR drawings etc...the act of interpretation and development may mean that that person has a right to be included on any patents that may come out of the project.  I was personally `burnt` by this - i.e. someone`s father helped his son with the development of our prototype and when the product was a `hit` the father sued both the son and the company for his share!  Nice!

Be careful to agree who owns what BEFORE undertaking the work - this also goes for people helping you with Business Plans and so on...they could always come back and ask for equity due to the addition of thier intellectual property i.e. ideas!

Andrew
http://www.AdvisorGarage.com

 

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Andrew PS - Here's a free report on creating your startup success. Free report