Discussion:
last year I designed a website for a friend to use in a business venture she was doing. I was supposed to start maintaining the site on a monthly basis as soon as she started making money. Well she never did make any money and the site has apparently been taken down from the net.
My question is I don't believe she ever filed any copyright papers for anything on the sight. I still have the files that I used for building it saved in my frontpage program. I would now like to put this site back up on the net and use it for showcasing my website design capabilities.
Can I do this? I don't want to get sued here, but my friend never did anything with it after I finished the site for her.
Thanks,
KT
Answer:
This post was edited and moved to the next post. I apologize
for any inconvenience.
Answer:
Either you are the copyright owner by authorship, or your friend is
the copyright owner by contractual agreement and/or work
relationship.
If nothing was mentioned about copyright ownership in your
agreement (verbal or written), I suspect she might be the
copyright owner if you agreed to be an employee of hers
during the period you designed the web site. An agreement
to be an employee to maintain the web site may or may not
establish an employer-employee relationship during the
period you developed the web site.
If you were hired as an employee, but you were never paid,
I am thinking your friend would be the copyright owner, and
you could only file a claim of lost wages against her.
If there is no possibility you entered into an employer-employee
relationship, then your work relationship would be considered
either as an independent contractor or work-for-hire.
If there was no written agreement, it is most likely you would
be considered as doing independent contract work. Unless you,
as an independent contractor, agreed to assign copyright ownership
to your friend, you are most likely the copyright owner of your work.
Work-for-hire agreements are similar to employer-employee
relationships; i.e., the hiring party inherits copyright ownership,
unless otherwise stated in the agreement. However, work-for-hire
agreements are suppose to be in writing for them to be legally
binding. Also, it depends on the type of work being performed
as to whether or not the agreement is a "work for hire"
agreement, regardless of how they are worded. I believe
computer programming work is not considered "work for
hire" unless the work is part of a larger work, where several
different programmers may be involved. There are three
criteria to meet "work for hire" status for your particular
situation:
* the work must not already be in existence, and "must be
- specifically ordered or commissioned" - this criteria may favor
- your friend
* the work must be "a contribution to a collective work" or
- greater work - this criteria favors you unless the web
- site is educational in nature, is "a translation" of some other
- work, "a compilation" of facts, is "an atlas", or is "a part of a
- motion picture or other audiovisual work"
* "a written agreement must be signed by both parties
- indicating it is a work made for hire" - this criteria favors you
- if no such written agreement was signed by you and your friend
On the surface, it appears (1) you had no written agreement
with your friend, (2) you did not have an employer-employee
relationship with your friend, (3) you were performing
contractual work, and (4) you did not assign copyright ownership
to your friend; therefore, it appears you have ownership of
your work.
As an independent contractor, if you agreed to assign copyright
ownership but you never received compensation, I suspect
ownership has reverted back to you.
Most of the above information was based upon information
found in the book "Getting Permission: How to License &
Clear Copyrighted Materials Online & Off" by Attorney Richard
Stim. All of the above quotes were from the same book.