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

Boy, this is a great forum. Ms Shepherd's comments are cogent, well-stated, and should be very useful to anyone involved on either side of a website design transaction. I've interspersed a couple of comments in the quote of her posting below, in case the viewpoint of someone who's involved in this kind of work every day would be useful to anyone.

C. Goff
Riley Communications
North Branford, CT

On Fri, 10 Mar 2000, Carol Shepherd <shepherd[_at_]arborlaw.com> wrote:
>
> On Thu, 09 Mar 2000, Colin Goff <colgoff[_at_]worldnet.att.net> wrote:
> >
> > 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.

That's an excellent point--the "content and "container" are two distinctly different animals, and need to be treated as such.

> 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.

Absolutely true in most cases; in my case I do produce original writing and graphics for the customers. And in many cases, the work produced for the Web is not derived from the work done for printed materials. But generally, the process happens as stated above.

> 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.

Or give it away inadvertently, since anyone can download the code behind a web page. I don't know what protection a designer has against someone inserting , for example, a "borrowed" java applet in another page--unless, I guess, it results in a page with an obvous "look and feel" infringement.

(This also changes another fundamental aspect of my work; for printed materials, the customer DOES NOT own the electronic files used to produce the printed materials--what's on my computer belongs to me. But with a website, they can download the code any time they want to, so it in indeed accessible.)

> 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.

Dang, I need to change the licensing agreement. I hadn't thought to break out the "content" from the "container," but I sure will now.

I have done something kind of like this in the past, because I'm careful to avoid "work for hire" arrangements. For example, I did a graphic regarding "New England Craftsmanship" for a customer, and made an arrangement with them that I retained the copyright and could use it for other customers (as long as they weren't in te same business as the original customer). You need to have good customers, and keep them very happy, in order to work these kind of deal, though.

> 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.

It seems to me that most downloadable documents are provided by the website so the visitor can print them locally for easy reference instead of having to return to the website. This would fall under "fair use" just like someone copying a catalog page. But remember, I'm working in a pure business-to-business environment; so this may not apply to consumer or commercial situations.

Colin Goff
<colgoff[_at_]worldnet.att.net> Received on Sat Mar 11 2000 - 18:42:58 GMT