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Who Owns the Web Site? Preventing Disputes Between You and Your Web Designer

BY Paul W. Garrity
April 30, 2008

In the digital age, it is essential for a company to have a Web site to both promote its goods and services and to communicate with its customers. Many companies, rather than keeping their Web design, development, and hosting services in house, have hired an outside company to provide design and hosting services for their Web site. While this arrangement can save costs and result in a more professional final product, it also poses a number of risks when the company's relationship with its developer comes to an end. Possibly the greatest risk is a dispute over who owns the copyright in the Web site code developed by the outside developer. Even if the company provides all the actual content for its Web site to the developer, the developer may be able to claim copyright protection in the development work it has done, such as the HTML code that makes the content display correctly in a Web browser. If the developer, rather than the company that hired the developer, is deemed to own that copyright, the developer can seek to enjoin the company from further use of the Web site, potentially crippling the company's business. This article provides a brief exploration of these issues, including how to prevent such a dispute from arising and appropriate litigation strategies when such a dispute does occur.

Preventing a Dispute

The easiest way to prevent these sorts of disputes from arising is simply to cut them off at their beginning, by carefully drafting express agreements with the designer relating to the copyright in the Web site content that he will develop. As a general rule, the designer, as the creator of the source code for the Web site, would own the copyright in that content unless the designer is an employee of the hiring company or the agreement concerning the Web site's design expressly designated the work as one made for hire. 17 U.S.C. '101. To avoid any ambiguity, the designer's client should require that the designer sign an agreement that clearly states that the content being developed for the client's Web site constitutes a work for hire under the Copyright Act or that otherwise expressly acknowledges that the client will own all copyright in the Web site, and the designer should be required to place an appropriate copyright notice on the pages that he designs, indicating that the client owns the copyright. The client may also want to register the copyright in the Web content as a further pre-emptive measure, if such an agreement exists.

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