Re: web site features: fair use? or allowed via contract with freelancers?

On Thu, 09 Mar 2000, Colin Goff <colgoff[_at_]worldnet.att.net> wrote:
>
> On Wed, 8 Mar 2000, Julie Cason <julie[_at_]icopyright.com> wrote:
> >
> > * * *
> > Apologies for resending this, but I hadn't received any responses over
> > the last week (which is unusual for this list).
> > * * *
> >
> > I'm wondering if any of you have legal insights into the now-pervasive
> > web site features of "Print This Story" (printer-friendly versions
> > created from content-rich web pages) and "Email to a Friend".
> >
> > It seems that publishers, by providing these tools, are enabling (if
> > not actually authorizing) readers to easily make copies of online
> > works. If the publisher owns the copyright to the works, all seems
> > perfectly fine and within the owner's rights to allow.
> >
> > However, if the works were originally created by freelance authors,
> > there are at least 2 scenarios:
> >
> > 1) the publisher's contract with the writers (photographers, artists,
> > et al) specifies that the Web site publisher retains the right to
> > enable emailing and printing.
> > 2) or the contract is silent on these Web site features/utilities.
> >
> > I would very much appreciate feedback along the following lines:
> >
> > 1) copyright disputes over enabling these features (esp. in light of
> > Tasini v. New York Times)
> > 2) if you haven't heard of any disputes, whether you think there might
> > be merit in some
> > 3) and any of this list's typically insightful, incisive analysis.
>
> I'm not an attorney, but I am a writer and a website designer, so maybe
> the way I handle this situation will be informative for you:
>
> As far as I can tell (although it seems that copyright issues are only
> ever clarified in court, not by the original laws), the copyright for
> Web page content belongs to the designer, unless the designer is working
> specifically under a "for hire" contract.
>
> Because of this, I provide my customers with a letter that transfers
> the copyright to them after finishing the project (and getting paid
> for it). I consider this just a formality, but it's better to make
> everything clear.
>
> Regarding written materials that the site allows people to forward via
> e-mail or print, I would consider this to be a "fair use," just as if
> someone were to tear out a magazine article that I had written and mail
> it to a friend. It still doesn't allow the website visitor to claim the
> work as their own or violate any other copyrights; so I wouldn't expect
> my customers to pay me anything extra or put any clauses in my contract
> with them.

I use the word "content" for the text, pictures, sound and video files which make up the consumable information on a website, and the word "container" for the layout, design, frames-related code, back-end java applets, etc. These are not legal terms; I just use them because it reflects how web designers and their clients make these kinds of deals. This is a different use of "content" than the poster above.

The post above implies that "content" belongs to the web designer and needs to be transferred. Under my definition of "content", I disagree that the web designer typically owns the copyright in the content (as distinct from the container). In my practice experience the content is almost always provided by the client and modified by the web designer, because the designer rarely writes the client's marketing materials from scratch. Therefore, in most cases the web designer really needs a license to make the site, which is a derivative work of the client's original materials supplied for inclusion. It is this derivative work which is transferred to the client. Plus, even if the "container" is all original work of the web designer, the web designer will most likely want to re-sell parts of the "container" (frames code, java applets) in designs for other clients. Therefore, the appropriate legal mechanism is a nonexclusive license of these container design elements, rather than a transfer of exclusive rights, for those parts that are re-usable.

Regarding the "print" function, I agree that the typical online publisher contract (a) is the appropriate place to deal with this issue and (b) may not adequately deal with this issue.

Clearly the right to publish needs to include a right to publish in various formats. I know of no disputes on the "print" function as a separate item; however, there are a number of disputes over whether distribution in various formats (download as opposed to just making something readable online) should be subject to another royalty or other form of extra compensation to the author. Market forces are tending to make this an issue of how much power the writer has, in negotiating the contract with the publisher, as to subsidiary rights income participation.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
734 668 4646 v  734 663 9361 f
business, technology, entertainment
and new media law
<shepherd[_at_]arborlaw.com>