When you hired your Web site developer to build your Web site, you agreed on a project, signed a contract, paid a price. Therefore, you automatically own the Web site, right?
Jeffrey Rose, an intellectual property Attorney who writes for IP Magazine says “The client might presume that he is the owner of everything that the developer was paid to create, but this is rarely the case.”
We hear from a lot of companies who, for one reason or another, decide that the relationship with their current developer needs to end. But when they ask to take their files elsewhere, they’re told that they can’t have them, because they don’t own them.
And while it’s surprising, disappointing and angering, unfortunately it is also correct! And while they feel they’ve been ripped off, they’ve only been deceived by not having been informed from the beginning.
The misunderstanding stems from the fact that we’re used to the print model, where we pay a someone to come up with the design, then we pay for the paper, and pay the printer to print the design on that paper. The finished product is ours. We own it.
However, software and the Internet are different.
Here’s a pop quiz to show you why: Do you own a copy of Windows 95 or 98 (or the MAC O/S)? Do you own Word, Excel or Access?
If you answered “Yes” to any of the above, you’re incorrect.
Even though you went to Best Buy, wrote out a check, brought home a shrink-wrapped box, and installed the software from the enclosed CD, you still don’t OWN the program. You have merely paid for a license to operate the computer files contained on that CD.
Web sites are made up of computer files, and so they fall under the same copyright and ownership rules as other software.
In J. Dianne Brinson and Mark F. Radcliffe’s “AN INTELLECTUAL PROPERTY LAW PRIMER FOR MULTIMEDIA AND WEB DEVELOPERS,” they write: “You should not assume that you own the copyright if you pay an independent contractor to create the work (or part of it). In fact, generally the copyright in a work is owned by the individual who creates the work, except for full-time employees working within the scope of their employment and copyrights which are assigned in writing.
What this means is that if you have subcontracted an individual to create your Web site, he or she owns it. If you contract a company to develop your Web site and the contract doesn’t specifically spell out who owns the files, that company (not you) owns the files. And those aren’t company policies, they’re a federal law.
The moral of the story is this. Make sure that your contract with your developer explicitly addresses the file ownership issue to spell out who owns the files, and the terms and costs associated with transferring the ownership to the client.
One final caveat: Some of the software on your site may require other programs to be installed on the server for areas of your Web site to run. These programs are files that are owned and licensed by third party companies (Database Programs, Operating Systems, Secured Server software, etc.). And while getting a license to install those programs on a new server may be relatively easy, they cannot be included in any file transfer agreement with your developer.
It’s a tricky legal issue, but knowing the law, and making sure you’ve got yourself covered will avoid a misunderstanding later.