Re: Web site vs. Web designer

From: Terry Carroll <carroll[_at_]tjc.com>
Date: Wed, 11 Sep 1996 20:43:41 -0700 (PDT)

On Tue, 10 Sep 1996, Michael Leventhal wrote:
>
> However, assignment of copyright is not ultimately as beneficial to
> web site owner, in that a Work For Hire is owned by the owner for the
> life of the copyright, while a grant from the author may, in some
> circumstances, be terminated in thirty-five to forty years. Of course,
> in Web years, that's a couple of millenia, but I always ask my clients
> to think of a movie made in 1960 that they might want to have a piece
> of today . . .

Whether an assignment or a work made for hire is more beneficial is a highly situation-dependent question. There are a couple of points in favor of an assignment, and in the context of a web page design, I think they clearly outweigh any factors in favor of a work made for hire.

First, an assignment has certainty -- an assignment assigns the copyright. (I realize that neither an assignment contract nor a work made for hire contract have certainty per se -- every agreement is open to attack -- I'm referring to the uncertainties inherent in ensuring compliance with the statute.) An agreement that a work is one made for hire depends on compliance with the statutory definition, including the condition that the work fit into one of the enumerated categories. If a person who authored the work wants to regain title to that copyright, in some cases, it could be a close call as to whether the work in question meets the statutory requirements. If the work is a set of HTML files, will those qualify? I doubt it. I suppose an argument would be made by the hiring party that it is an audiovisual work, or a contribution to a collective work, but, absent some additional facts, both of those seem to be stretching the section 101 definitions for those species of works.

A second point is that, in some jurisdictions, a work-made-for-hire contract can trigger some additional obligations. A notable example of this is California, in which such a contract triggers an obligation to treat the hired party as an employee for purposes of unemployment insurance and worker's compensation.

If you're producing the next "Fantasia," or even "Weekend at Bernie's III," sure, there are some factors that make you favor a work made for hire: the work is unquestionably within the statutory definition, and the cost of the California obligations, if applicable, are probably insignificant to the overall budget. But for a web page, as is proposed here, I'd consider the assignment to be far superior. The prospect that one might lose the copyright in 2031 if the author decides to file a termination isn't a significant factor.

--
Terrence J. Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward Castro Huddleson & Tatum             fax: 415/857-0663
Five Palo Alto Square            email (office): carrolltj[_at_]cooley.com
Palo Alto, CA 94306-2155         email (personal):    carroll[_at_]tjc.com
Received on Thu Sep 12 1996 - 03:48:55 GMT

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