As a law student I often get asked by friends and friends of friends who have online blogs such as this, small online stores or who use Wordpress or similar website development programs, how they can protect their work online and when they might fall foul of copyright laws. Sometimes the questions relate to who owns what image, whether the whole website is 'theirs' or just the content they upload or how much material they can use from another person's website on their own. Other questions concern what sort of contract website developers should negotiate with the business owners.
With this in mind, I've written out brief responses to some of the more common problem areas for bloggers and small website operators ranging from suggested business agreement formats to site ownership questions. I hope it helps you start to understand your legal options and responsibilities. Always remember though to obtain qualified legal advice if you have specific legal questions or require legal assistance!
1. What sort of contracts and agreements should business owners consider putting in place with their developers to avoid ownership surprises down the line?
It's often a very good idea to write out a Website Development Agreement with any person (a freelance website designer for example) who is designing a business owner's website. This agreement should set out the key terms and conditions upon which the developer is to design and build a business owner's website including:
1. Fees
2. Development Stages and Delivery Dates
3. Scope of work
4. Payment Terms
5. Ownership of Copyright
6. Obligations of Business Owner to provide content
7. Developer's Warranties as to quality and suitability of website
8. Confidentiality
9. Termination & breach clause
The agreement needs to clearly state that the developer assigns ownership of the copyright in the website and its content to the business owner upon full payment of their fee. By law, assignments of copyright need to be in writing and signed by (or on behalf of) the assignor. A verbal agreement will not suffice and should not be relied upon! So always make sure your agreement is in writing for your own peace of mind!
2. If a site owner uses a pre-built platform (like Shopify, Etsy, Wordpress) to build their online store, who 'owns' that website?
Whilst you will retain ownership of all intellectual property rights for work and images you submit for the website, the coding, development and designing of the website platform remains the property of the business that created and developed the pre-built platform. It can be helpful here to think of a website in two parts. Part One belongs to the business who uses the platform for their online store. It will own the website's content such as words, images, products or ideas rather than the developer of the pre-built platform. This is the part of the website that the business can exert ownership over. Part Two, the coding and design of the site that is unique to the platform, remains the property of that developer (such as My Online Shop or Shopify). This will include their logo, specific designs or themes, fonts or images.
Finally, it's important to remember that whole websites are not protected by copyright, only their component parts can be protected so ensure you keep a record of all submitted work and images you submit. They will be automatically protected by copyright as soon as it is saved in a 'material form' (such as on a USB, saved to your hard drive). A copyright statement at the footer of text, photos, videos or graphics also indicates to site users that other companies own some names, brands and logos within the website. So don't forget to add that little ©!
3. If a business contracts a photographer for a shoot, or an illustrator for bespoke graphics, who owns the images/graphics?
Again, there is a general principle of copyright that the author of a literary, dramatic, musical or artwork owns the copyright in that work. However, there are two exceptions to this general provision. So, if the photographer or illustrator has entered into a contract (signed and in writing assigning copyright), then the photographer/illustrator is no longer the effective copyright owner because the ownership has been transferred through negotiation in exchange for fees. Alternatively, if the work was created in the course and within the scope of the photographer/illustrator's employment - then the employer or business owns copyright in the work. BUT! Bloggers and Writers take note: these exceptions do not always apply to freelancers, independent contractors and volunteers. So with this in mind, it is best practice to have written agreements with all the contributors involved in the project/development, to ensure copyright ownership is clearly determined. Again, it is always best to get such agreements in writing, specifying the how and when such ownership is transferred between parties.
4. What are some examples of the types of agreements or contracts that could be put in place with bloggers/copywriters?
To protect your online business and minimise risk, it is normally advisable that websites contain disclaimers regarding all third party content. This is especially relevant when considering claims of misleading and deceptive conduct, or defamation. You don't want to be blamed or held responsible for that one defamatory remark from an anonymous troll on your website, do you? Moreover, third party content should come with a warranty that all material is new and original. The third party should be well acquainted with the necessary rights and clearances required. Again, it is important that anyone creating content has assigned the copyright to the business owner.
5. What kinds of terms and conditions should businesses have on their website regarding the copyright of the content (blog posts, photos), illustrations) and how they can be used by others?
Every website should contain terms and conditions of use! Terms and conditions of use let others know that they must seek your written permission to exercise an ownership right belonging to you. Copyright owners have the right to: reproduce or copy their work, communicate their work to the public, publish their work, perform their work, and adapt their work. As a copyright owner, these rights are exclusive to you. If you did want to allow someone else to exercise some or all of the exclusive rights of a copyright owner, you could license your copyright. Here, it is important to determine the permitted uses, the territory, the term of the license, any sub-licensing right, the nature of the license and any payment by the licensee.