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Web Design Content Ownership

Portland, OR |
Filed under: Business

I am having a web developer generate a website for my business. What kind of contract do I need to have him/her sign in order to make sure that the content he/she generates belongs to the company and not the developer?

Thank you.

Attorney Answers 7

Posted

Generally speaking, a design services agreement will protect a website owner under these circumstances with the key term being a detailed provision on "works for hire."

Best wishes.

I am happy to give my "answer" to this question, but please understand that my posting does not mean that you have hired me as your lawyer. Even though I am a real lawyer with a current Nevada law license, I have given my input on this legal question for general information only.

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Posted

The contract should have a provision stating just that. For example, it might say:

"The parties agree that any source code, images, text, or any other content generated by [developer] for use on [business]'s site pursuant to this contract are the sole intellectual property of [business]."

You may wish to have a lawyer draft the contract, to be sure all contingencies are covered.

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Posted

Great question and one of the most common mistakes made by business owners contracting for web design services.

My colleague correctly references a work for hire provision to be included in the web development contract. This means that the content and code written for the site are subject to copyright held by the site owner not the coder or developer. On the flip side, the developer will want clear payment terms in the contract and enforceable remedies if the fees are not paid when due. Finally, be sure that the business is the registered owner of the domain name or names used in connection with the website.

Hire an attorney who has prepared, reviewed and negotiated these types of development agreements. Ask for references. Good luck.

This answer is provided for information purposes only. It should not be relied upon as legal advice which can only be offered to clients in an office consultation setting when all the facts and circumstances can be fully considered and reviewed.

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Posted

Greetings from Beaverton.

Your developer is not likely an employee under sec. 101 of the Copyright Act. As a contractor his or her project is not one of the 9 types of task that can be designated work for hire by contract.

So, although you may have an implicit license to use, under a case from the 9th Circuit (OR is in the 9th), that case depends partly on having come from CA, and is a weak reed to rely on.

Instead make sure that your contract provides that on payment the developer will assign (transfer) all rights to payor (you or you firm), and will sign all papers needed to register the assignment with the Copr. Office. Have the contract drawn by a lawyer, and make sure developer guarantees any photos or artwork he puts in is his to license and he licenses it, or he has the right to sublicense it to you.

Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

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Posted

Attorney Marcus is dead on. Because the web developer is not your employee, AND because web development is probably not one of the nine types of works that can be works-for-hire, you will need an explicit provision in your development agreement doing two things: (1) obligating the web developer to execute any documents that are necessary to effectuate a transfer of ownership, and (2) assigning all rights in the work done for you to your company.

It can't hurt to include an explicit "work-for-hire" clause just in case. If web development is ultimately interpreted to be within the nine enumerated types of works-for-hire, then you're covered. If not, you're still covered under the clauses above. Can't hurt.

But still, hire a lawyer so you don't goof this up. You will regret it later if you don't.

Good luck.

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Posted

If you don't get an assignment of copyright, by default you only own on copy. A typical contract will say that the parties agree that this is a work made for hire but in the event that it is held not to be one, contractor assigns all rights. It should cover all forms of IP, but be particularly sensitive to copyright issues.

It should also oblige the contractor to have any subcontractors sign a similar agreement.

You could also consider confidentiality agreements. And consider open source issues. If you think the resulting site may be patentable, you don't want to be bound by some public licence requirement to give code away.

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Posted

Others have already mentioned work for hire and assignment.

You need these, but you need more as well.

Some of the work can become yours under the work for hire doctrine but some of it needs to be assigned.

Further, you need to have a copyright indemnification clause. This is designed to protect you against web developers who do not clear the rights in the images, software, and other content they use.

In short, if this is a business website you need a lawyer knowledgeable with technology and IP to draft you a quick contract covering these and other issues.

This information DOES NOT create an attorney/client relationship. I only represent clients after I've entered into an agreement with them. This is general legal information geared towards Georgia law. If your problem is not one involving Georgia law, then you should consult an attorney in your jurisdiction. THIS IS NOT LEGAL ADVICE—it is provided for informational purposes only. You should always contact an attorney if you have more questions.

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