re: Who owns the Town (Web Pages)?

Alexa Jaffurs <ajaffurs[_at_]MAIL.WESLEYAN.EDU> writes:
>
> My local Merchants Association was approached by a fellow who
> proposed to do a web page for the town.
> ...
> he created a web page that was basically an online
> version of a pamphlet that the merchants had printed last year. Same
> artwork, same copy. ...
>
> [Now] It's time to put things
> in writting and either pay him for the ongoing tasks or find another
> firm to do the job. In the event of the latter scenario, who has
> the stronger claim to the existing web pages, and more importantly,
> who owns the town address? The current site is a space on a
> commercial provider, not the artist's personal server, not the
> artist's personal internet space.

As a non-lawyer I'd see a number of curious angles here. I'll be interested in others opinions, since the ownership status of work on collegiate home pages is similar and dear to my own heart.

1. I gather the html "artist" has not fully been paid. If not, it would seem he still owns his work: the markups etc. though the raw material he marked up belongs to the holders of the copyright of the merchant's pamphlet. Whether or not the markups are copyrightable is a separate question, hinging on the degree of originality involved. If a fee for his services was agreed upon and if the scope of his services was agreed upon, then the merchants should pay up or else he can rightfully fuss loudly (i.e., litigate) regardless of the copyrightability issue.
2. Once the artist has been paid, then the question is "has the copyright (if one exists) been transfered?" as work-for-hire. Ordinarily yes, but sometimes, no. Exceptions tend to be things like (let's view the "town" as being like a publisher): if the work is photography, then the photographer may still claim the copyright, bestowing onto the publisher only the right to print the photo. If the work is a text, then the publisher may (according to the National Writer's Union, but not according to the NY Times) own only the right to put it on paper, but not the right to put it on the Internet. This is why many publishers require artists to sign something that says, in essence, that the artist surrenders all rights, imaginable and unimaginable, in all contexts, conceivable and inconceivable. In the absence of a clear contract which spells out all of this (and which is not so inherently paradoxical as to render itself unenforceable such as the above which sort of says "the undersigned hereby agrees to do something that the undersigned cannot in principle understand" ) then one might anticipate loud fussing.

I don't know of any quibbles that have bubbled into courts concerning the scope of work-for-hire for free-lance html coding, but such could prove perplexing. It would seem that the artist would have little ground for arguing that the purposes to which his work were put were, in some way, different from those agreed to, since presumably both parties will have assumed that the work is intended to be published, and that in the manner of a typical home page, both parties SHOULD view this as an ongoing, continually revised work which the town/merchants will need to update from time to time. This should imply that the town (or the public, if the town, like the US government, does not exert its own copyright) owns it and can modify the html and change the contents of their pages at whatever time they see fit.

In other words, even in the absence of a contract which spells all this out, the nature of the work itself should render this interpretation correct, but I suppose contract law and the presuppositions that surround oral agreements vary considerably as a function of longitude, latitude and provincial boundaries. So I guess I would echo Ms. Jaffurs' question ... is there not some overriding principle which would apply so as both to allow continued work by another artist and to insulate the town from litigation here, if they have indeed paid the artist as agreed?

3. Copyrightability of his html tags -- Some writers on this list have argued that there is none. But whenever someone here makes the argument that craft X involves no originality, in a matter of small time guildspeople from X come forth with arguments that indeed it does. There is likely to be a continuum in any craft from the simple adding of page numbers to public domain material to writing fancy applets or perl scripts in cgi-bin associated with some pages. There are entrenched and funded camps on both sides of this river; hence, truth remains fractal.

If as you say, the artist's task was to, as faithfully as possible, convert the existing paper pamphlet to an online one, then, as some on this list have argued (in the case of museum photos) any originality would be antithetical to the task at hand, and thus would constitute a bug rather than a feature -- possible evidence that the artist did not do his job. Contrarily, though, WestLaw and the artist could argue that their typesetting and onlineliness add value, cost brow-sweat (Feist notwithstanding), and entail uncountably many tiny judgments (the equivalent of creativity atoms) which, in sum, comprise a new copyrightable entity.

4. The issue of addresses is curious, and I'm not sure I follow it.

1. Perhaps the artist put the pages up at some location like http://www.somerandominternetprovider.com/TownMerchants.html

If the Town pays the bill to "somerandominternetprovider" then I don't see how the artist could take any credit for whatever cleverness went into designing the sequence "TownMerchants.html" It is too small a sequence to be copyrightable, and any potential trademarks associated with such a string of characters ought not to be purloinable from TownMerchants by the artist.

b. If the artist (named VVGogh) pays the Internet bill and the address is something like
http://www.somerandominternetprovider.com/~VVGogh/TownMerchants.html, then this is different, but that seems not to be the situation you describe.

David Dailey (ddailey[_at_]williams.edu) Received on Fri Mar 15 1996 - 16:05:29 GMT