Re: Web site vs. Web designer

From: Michael Leventhal <wiredlaw[_at_]primenet.com>
Date: Fri, 13 Sep 1996 10:18:26 -0700 (MST)

On Spetember 11, 1996, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
>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.

The argument regarding the relative certainty of an assignment versus the uncertainty of a work for hire is well taken, but assumes that the contract language is all or nothing. My work for hire agreements always state that, in the event that the work is determined not to be a work made for hire, the developer assigns all rights in perpetuity, and waives claims, and agrees not to assert claims, etc. Fall back after fall back. In that context, and not yet addressing Terry's second point, I'd rather have the work for hire language in than out.

Next, what is the argument that HTML files would not qualify as a contribution to a collection?

> 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.

This is a very good point that goes outside of academia and into the real world. I practice in California and have grappled with this issue. Sometimes these questions tip the scales towards an assignment.

> 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.

This depends. A great deal of my practice deals with entertainment-based projects with a (hopefully) very long commercial life, and the year 2031 won't be far enough away for my malpractice carrier. (Hopefully, I'll still be alive and long retired . . .)

Michael Leventhal
<wiredlaw[_at_]primenet.com> Received on Fri Sep 13 1996 - 18:57:07 GMT

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