Imagine one day, after you have successfully launched your Internet business, you sit down to surf the web and do a little research on your competitors. Suddenly, you discover a website that is in direct competition with your business and the site looks similar to the website you paid hundreds of dollars to have created. Now you’re pretty angry and your first instinct is to pick up the phone and threaten the website operators with legal action. But, hold on, you or your business may not actually “own” the copyrights to your website or separate site elements!
Who Owns Your Website Under Copyright Laws?
Even though you may own the domain name or content on your website, the ownership rights to the website design and separate website elements may reside with the creator. If that is the case, you are merely left with an implied, non-exclusive license to use your website and the separate website elements created for you or your business.
If you hired a designer or other third-party to design and create your site, he or she may legally hold the copyright to your website. Under United States copyright law, creators are presumed to own the copyright in the works they create. This means that whoever creates the various aspects of your website will be presumed to have ownership of the copyright in those specific elements (the concept of separate website elements is discussed more below). Unless you are the actual designer of your website and each separate element, then the only way you can legally acquire the exclusive ownership rights to your website is by having a signed writing with the creator transferring all of those rights exclusively to you. Under the provisions of the United States Copyright law, a transfer of exclusive rights in a copyrighted work must be in writing and signed by the owner of the rights. Thus, if you engage the services of an independent website designer, you do not own exclusive rights to the website or certain separate elements of your site unless you have a written website development agreement stating this. There are also other important reasons why you should always use a website development agreement.
Separate Website Elements Ownership
If multiple people contribute to the design of your website and these contributions are distinguishable, there may be separate copyright owners of each separate element. In other words, the different aspects of your website may be owned by whoever created those aspects. For instance, there is a copyright in the design or website template (the overall “look and feel” of the site), and there are separate copyrights in the content contained on a website such as the text, images, graphics, videos. Images and other elements such as the header are all separate website elements that contribute to the overall website design. If the website designer created each separate element and not just the website template, he or she would likely hold the copyright to each element.
Collectively, the overall look and feel of your website design may be protected “trade dress” if the design is distinctive enough. This is yet another evolving area of Internet law where no established and consistent guidelines are yet in place. On the other hand, any elements downloaded from the internet are already in the public domain, assuming that such elements do not contain copyright restrictions. If any of these elements have been created by you, such as your logo, your photo, animations, etc. then you own the rights to those specific and separate elements of your website. e poe tegemine
However, you should keep in mind that any actual photographs you provide may actually be owned by the photographer that took those photos. The photographer would be considered the author of that particular “work”. Unless you have ownership rights through some contractual arrangement when any photos or images were created for you, the photographer would likely own those images.
Another distinct element is the text contained on your website. Obviously, if that has been created by you, you own the copyright to the text. But, it is not simply the text that appears visually on the screen. The way in which text is formatted and presented in the form of HTML, or even VRML coding is also protected. If your website designer created that coding, then the coding, as distinguished from the text itself, may be owned by the designer. Similarly, the manner in which the website designer has set up the hyper linking on your site may be owned by the designer.
The bottom line is that you may own the text, but the designer may own the way the text is configured and coded on your website. Again, the key is to obtain a written website development agreement transferring all of these rights to you or your business. Otherwise, it may not be clear who owns your website!
This article was written by Philip A. Nicolosi, J.D. Mr. Nicolosi provides legal services through his law firm, Phil Nicolosi Law, P.C., focusing on startup and small business law, Internet & technology law and commercial transactions.
Mr. Nicolosi serves as a trusted advisor to numerous startups and small to medium sized businesses. This includes representation for a wide range of business law matters including business organization, corporate/LLC governance, regulatory law, contracts and transactions and most other matters outside of litigation. Mr. Nicolosi provides guidance with e-commerce, Internet marketing and technology-related legal matters. He also assists startup technology companies with seed financing, venture capital and exit transactions.