web template copyright ownership
- November 3, 2008 @ 11:01amvman says:I created a web template design for a sole proprietorship for a very small fee. The owner of this other design company handed me a check up front and I sent him the photoshop file. There were no contracts, neither verbal nor written with regards to this transaction. He and the end user were very happy with the design.
The purchaser of the template is insisting that I remove this design from my online portfolio because he insists that he has copyright ownership to the design simply because he paid me for it. My contention is that, since we never agreed in writing that this was a work made for hire, I own full copyright ownership and can do with the design what I please.
The second part of this question is this; The buyer sold this design to one of his clients. I do not know what the terms of their agreement was, but regardless, I still own the copyright on the design, correct?
This guy has wasted several hours of my time with threats of a copyright infringement claim. I am at the point where I am inclined to go to the end user and solicit tranfer of the copyright to them just to get this guy out of my hair, so there is no question as to who has ownership.
Can i do this? or can I simply ask the end user to take the site down until they come up with another one?
Thanks in advance for the help.
- November 4, 2008 @ 10:08amRuthDukelow says:It sounds like this might be an issue of contract law relating to ownership of the copyright to the web template, not of copyright law per se. You might wish to consult an attorney regarding your claim of ownership under your state's contract law. An unwritten contract can be enforceable.
Also, have any of the parties registered the copyright with the U.S. Copyright Office? http://www.copyright.gov/
- November 4, 2008 @ 2:16pmksmith says:Prior to any contract issue, it seems to me that the definition of work made for hire in the copyright law is relevant here. According to the definition of work made for hire in section 101 of the copyright act, there are two ways in which an employer will be the initial owner of a work (which is the result of work for hire according to section 201(b). First, if the work is created by an employee within the scope of his or her employment it is work for hire. The determination of who is an employee is made based on the standard criteria from agency law; the important point is that just being paid does not make one an employee. So the other prong of the definition of work for hire -- the one that deals with independent contractors -- is also important. A commissioned work is work for hire if it both falls into one of nine enumerated categories AND is the subject of an express, written agreement. An oral agreement is not sufficient to make a work created by an independent contractor into a work for hire.
If a work is not "made for hire," there must be an transfer of copyright from the creator to the employer before the employer could own the rights. That transfer would also have to be written; section 204(a) makes it clear that an oral attempt to transfer ownership of copyright would be invalid.
- November 4, 2008 @ 6:18pmvman says:No parties involved registered the copyright with the US Copyright office.
There were no agreements, written or orally, other than me agreeing to do the work for the amount he offered. Copyright ownership never came up.
Since he resold the design to his client, the end user, what rights do they have to it? Any? Do I have any rights to ask them to remove it from their site if this developer doen't quit hassling me?
- November 6, 2008 @ 7:13amksmith says:This is the point where you need to go back to Ruth's advice and consult an attorney; we can give you information about the copyright law on this forum, but not legal advice. Based on what you have told us, it seems likely that you own the rights in the template and have not effectively transferred them to anyone else, but the best way to manage and enforce whatever rights you have is a subject you need to discuss with your own legal representative.
I will add that Ruth's suggestion that the work be registered with the copyright office, which can be done online for a $35 fee, is very sensible step.
- November 6, 2008 @ 9:17amvman says:Thank you all very much for the advice. I appreciate it.
- June 15, 2010 @ 6:33pmnabinbuzz says:Hello All,
I have a created a web template for a game site for a Greece web company. They are in so hurry for development that i send them PSD without any legal contract because i believed their words. But after getting psd, job provider company neither send my service charge nor do reply to my email for a long time. So i want to have copyright to my creation since client did not pay penny for that template and if they release website using my template. What legal actions can i take against that fraud web company if they release website using my template without giving money. I have proof of all email between us.
Please anyone give advice.
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