At first blush, the answer to this question may seem obvious. But in actuality, copyright ownership can be very complicated; especially when the various relationships involved in the creation of works are not appropriately documented in advance.

Let's take for example, a company's web site. Most corporate executives would say that their own their web site. In fact, if you asked them this question directly, they may think you are losing your mind. Of course they own their web site. Well, not so fast....

The US Copyright Act, vests ownership of a copyright in the "author" of the work. So everything turns on who is considered to be the author of the work under the Copyright Act....at least for Copyright Law purposes.

Who Is The Author?

So who is the "author"? If one single individual sits down and creates a work on his or her own, without any contribution or involvement from any other party, and assuming that person is an individual, not creating the work for anyone else but his or herself, that person is most likely the "author" of the work for copyright purposes. But how often does that situation actually happen. In the modern world of complex computer programs and web applications, normally a number of different persons and firms work on a single application. Some may be employees, some may be contractors, some may be joint venturers...the list goes on and on.

Contractor Created Works

Where a work is created by a contractor, for example an independent contractor web developer, the independent contractor will normally be considered the "author" for copyright purposes; that is if the contractor creates the entire work and is not a joint author with another party. This is by virtue of what is commonly known as the "work for hire" rules under the Copyright Act. Under the work for hire rule, the contractor is the author and initial owner of the copyright, even if she is paid for the work by the customer

The parties can normally change this fact by appropriate documentation. For certain limited types of works, the parties can include a provision in their agreement that states that the works created by the contractor are works made for hire and that the customer is the owner of the work. However, the work for hire provisions are only applicable for very limited types of works and is actually morel limited than most people, including many attorneys, believe. For this reason, it is normally prudent to require a contractor to assign the rights to the copyright to the customer. This does not make the customer the author for copyright purposes. But it does accomplish an assignment of the copyright to the customer. At a minimum, the client should be certain to have the right to use the work licensed. Failure to do this can lead to a disaster. See "Who owns your Web Site?"

Subcontracted Works

The situation becomes even more complicated when the contractor assigns pieces of the work to subcontractors. This is actually quite common in the web development arena. Oftentimes, the web concept contains elements that are beyond the expertise of the developer. The developer may contract out pieces of the work to graphic designers, content providers, musician or producers, database programmers, middleware programmers or others. Subcontractors may have rights in the portion of the works that they create or they may be considered to be joint authors. The problem is that very often the customer may not even be aware that outside contractors are used to develop portions of the web site. The answer to this quagmire comes by negotiating these points up front and requiring assignments and appropriate agreements with necessary subcontractors.

Employee Created Works

Another common situation occurs when employees of a company create the work. Generally, works that are created within the scope of the employees job responsibilities are considered to be the property of the employer. In this case, the employer is actually considered to be the author of the work with the right to copyright the work.

There are ambiguities that can arise in the employment relationship that can muddy these normally clear waters. For example, there can be questions whether the work was created within the scope of the employees employment. It is not uncommon for employees to create works at home after hours. These works may be new concepts that are not within the current line of business of the employer. The employee may bring these works to the employer who utilizes them as an important part of its business. Issues of ownership may arise later and can have devastating financial consequences.

Because of these potential ambiguities, it is prudent to document ownership of all works that are used in your business. Employment arrangements should be appropriately documented with employment agreements with appropriate clauses, employee certificates of ownership, copyright assignments, and other appropriate agreements and documents.

Joint Works

Another complicating situation can be works that are not created by one person or one company, but are jointly contributed to by more than one person or company.

For example, a company web site may be assembled by the web developer based upon content provided by the developer and other content provided by the client. In this type of situation, the resulting work may be considered to be jointly owned by both parties; absent of course appropriate documentation vesting all rights in one party or the other.

Other related topics

[Copyright Myths] [Reasons For Registering A Copyright] [Copyright Notice]