The Web Designer’s Copyright Crash Course

John Tabita

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.

Image credit

Free book: Jump Start HTML5 Basics

Grab a free copy of one our latest ebooks! Packed with hints and tips on HTML5's most powerful new features.

  • http://onslowcountync.gov Glenn

    This “The Web Designer’s Copyright Crash Course” is a good article; however, material that was referenced was old, dating back to August 2006 and on top of that it was confusing. Your link to: http://www.sitepoint.com/forums/showthread.php?390902-WARNING-Getty-Images-Cracking-Down!
    I like reading but really!

    • http://www.onsman.com Ricky Onsman

      While the forums thread linked to is old, Glenn, I don’t see that it’s out of date. As a reference point providing context for the issues discussed, it’s as valuable and pertinent as anything else out there. That it is confusing is a reflection of the nature of the issue itself.

  • Lee

    Was at MinneWebCon in Minneapolis earlier this year and they had a lawyer there who was talking about this topic.

    The Legal Landscape in Cyberspace – Amy Sanders

    She mentioned that Pinterest.com is an interesting site because it exists because people are linking to images all over the world without regard for who actually owns them. I don’t think I’d invest in that .com any time soon. However, because they are not posting content themselves, they may be protected.

    [quote]The exception to the above is “work for hire.”[/quote]

    The Speaker also mentioned that a woman sued her former employer to gain rights to the content she posted (while at work) through her own social media account…AND WON!

    • Lee

      I misplaced the subject in my sentence. Amy Sander’s employer was not sued…the woman’s employer was sued.

  • http://www.mainzone.com Dave Mainwaring

    Please expound on “Fair Use” exception:

    http://www.copyright.gov/fls/fl102.html

    One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.

    This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code).

    One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

    The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    The nature of the copyrighted work
    The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    The effect of the use upon the potential market for, or value of, the copyrighted work

  • Helen Burgess

    So this is mainly around US laws. Here in Australia the main points are also pertinent I think.
    However the Australian Copyright Law, although similar is different and may have an impact on a designer/developers work. Could we have a overview of what this means for those of us who are not working in the US.

    hlnbee

    • http://www.onsman.com Ricky Onsman

      You’re right, Helen, that local laws will definitely affect how copyright is interpreted in different countries. There are 3 obstacles to taking this further. First, we’d have to cover all countries, not just Australia. That’s beyond our scope. Second, getting hold of country-based legislation is not hard (UNESCO has a great region / country guide), but making sense of the legislation is very tricky. Third, most legislation has not yet accounted for the web being a global platform – whose laws apply? There are some very useful guidelines in this area available at WIPO. Many local agencies produce guidelines like the Australian Copyright Council’s Info Sheet (June 2013). Hope that helps.

  • http://www.beyond-design.co.uk/what-we-do/web-design/ Sarah Ingram

    Thanks john for such an informative and simple article.Though the content you have referred is an old one the main concept can be easily understood.This article will be really helpful to the web designers to know about the U.S copy right laws and how to be different from other web designers..

    Thanks alot..!!!! loved to read it..

  • Froment

    “The past two articles, I’ve written about how image copyrights work…”

    Wouldn’t hurt if you provided link to those two articles, and save me time to search the site, eh…

    • http://www.onsman.com Ricky Onsman

      Just click on the author’s name at the top (or the More Posts link at the bottom) and you’ll get a chronological listing of their articles. Easy.

  • mobyme

    I can’t see layout being able to be copyrighted somehow; after all there are only so many permutations and there are millions upon millions of websites. Content whether it is images or text is a different matter and rightly so; there is nothing more irritating than have spent days working on something and then having some mongrel steal it

  • B. Newsome

    John, what an excellent article on copyright law. I find it intriguing reading what others have to say
    about the different faces of copyright law and what it pertains to. I was first introduced to the topic while attending classes in college (Rochester Institute of Technology, in Rochester, N.Y. some years ago. It gave me much insight on the proper way to handle work done for payment as well as personal work done for my own needs. I think you’re doing a great service to share all of this important and necessary information with us. I thank you for this and the time you must have spent to accumulate this information.
    Thanks again…..

  • emcomments

    “legally obliged to remove infringing content” does not mean “you are legally obligated to shut the site down”. Just remove the offending content.

    Useful summary article.

  • http://menext.org Rajendra Dhanotiya

    Hi John, I like your post very much, i want to is there any crash course for article copyright