The past two articles, I’ve written about how image copyrights work and the danger of using photos and graphics found on a Google search. But copyright laws apply to more than just imagery. Copying a design layout or written copy from another site can also land you on the wrong site of an infringement claim.
Copyrights, patents, and trademarks are all Intellectual Property, which is a work or invention that is the result of creativity. According to the U.S. Patent and Trademark Office, a copyright protects an original artistic or literary work, a patent protects an invention, and a trademark protects a brand name. In other words, patents protect ideas; copyrights protect the expression of an idea, such as a drawing, photograph, song, or written work; and a trademark protects a brand’s identity in order to distinguish its goods and services from another’s.
Since we’re primarily concerned with copyrights, let’s discuss how they function. Please note that I’m not an attorney, so nothing I say should be taken as legal advice. Also, since I’ll be discussing U.S. Copyright laws, some or all of what I’m about to say many not apply to other countries.
How U.S. Copyright Law Works
The moment a work is created in a tangible form, it immediately becomes the property of the author who created it. As soon as you draw that illustration, snap that photo, or write that article, it belongs to you. As owner of that work, you can license its use to another (and even restrict how it’s used), or transfer ownership entirely.
The exception to the above is “work for hire.” That’s when someone else hires you to take the photo or write the article; or when an employee creates a work within the scope of his or her employment. As a freelance designer or programmer, it’s important that your contract makes that distinction; otherwise, the work you perform could be deemed as “work for hire” in a court of law.
As an independent contractor, it’s also your responsibility to use only legally-obtained content, and to make sure you’re protected if your client provides you with content he “found” elsewhere online. It’s just as easy (and tempting) to copy and paste another’s content as it is to right click and “Same Image As…” with another’s photo. Both practices can land you in hot water.
If you steal someone’s content or images, your client’s site can be shut down by their ISP. According to the Digital Millennium Copyright Act, Internet service providers are legally obliged to remove infringing content hosted on their servers when the rightful owner submits a DMCA Takedown Notice. If you are their hosting provider (even if it’s a reseller hosting account), then you are legally obligated to shut the site down. Awkward.
Here are three best practices to protect yourself from copyright infringement.
Never, Ever Use Another’s Content without Permission
A persistent myth regarding copyrights is, if you change something 30 percent, it’s not infringement. (The same myth exists in the music industry as the 30-second rule.) If you’re not convinced this is something you should never do, read this thread.
Just because an item doesn’t have a © copyright symbol doesn’t mean it’s not protected. It’s not necessary to register or indicate your work is copyrighted; doing so just makes it easier to enforce.
Protect Yourself from Irresponsible or Ignorant Clients
Many people believe everything on the Internet is public domain. Some simply don’t care. We once had a client instruct us to take the design and content from a competitor’s site, claiming the competitor had originally copied his content. (We politely explained why we couldn’t.)
But what about images your client provides? You don’t want to be held liable in the advent your client provides questionable content he found online. Make sure your web design contract states the client warrants that he has the rights to use any content he provides, and will hold you blameless if not.
Be Careful What Rights You Assign
Unlike an illustration or photograph, I believe a website is a business tool that ought to belong to the client. That said, you ought to retain the copyright until the project is complete and you’ve been paid. At that point, ownership of the site can be transfered to the client.
The exception would be a custom application that has the potential to be resold. Suppose you developed an online pizza ordering system and transferred ownership to the client. Not only could your client resell the application, you would not be able to use it on any other client’s website.
The nuances of copyright law can be quite detailed, but if you follow these guidelines, you’ll keep both yourself and your client out of trouble.
Former owner and partner of web firm Jenesis Technologies, John is currently Director of Digital Strategy at Haines Local Search, a company providing local search marketing solutions to SMBs, including print and Internet Yellow Pages, web design, and local SEO. When not working or spending time with his family, John offers great sales and marketing advice on his blog, Small Business Marketing Sucks.