Create, Consult, Control
News & commentary on intellectual property issues.
May112009 | Steve O'Donnell
Creative Commons licensing
The Creative Commons licenses allow people to share their intellectual property with others while retaining certain rights to the work. It sounds good, but it can be it's own source of problems.
For the sake of argument, lets say that “Artist” downloads a number of Creative Commons (“CC”) licensed photographs and makes a collage of them. Under the Attribution clause of the licenses, Artist would need to indicate the names of the original creators. That doesn't sound too onerous, if Artist is only using a few CC works, but at some point, the inclusion of names detracts from the Artist's own work in compiling and organizing the separate works. Additionally, Artist would have to ensure that the CC license allows him to do what he wants to do. Some flavors of the license would allow Artist to make derivative works, others don't. Similarly, some flavors would allow Artist to sell prints of his collage, others don't.
If someone doesn't comply with the CC license then the license terminates and they could be subjected to a copyright infringement suit. If the original author thought this through, the copyright on the piece would be registered within three months of first making it public. In that way, if the license is violated there are statutory damages as high as $150k + costs and legal fees that are available to the original author. 17 U.S.C. § 412, 17 U.S.C. § 504.
In short, nothing is ever easy. Just because a work subject to a Creative Commons license, don't think that you can use it for whatever you want. Read the license, and if you have any questions contact an intellectual property attorney.
Apr272009 | Steve O'Donnell
Copyright issues for freelance web designers
By it's nature, web design is well suited for freelance work. Unfortunately, many freelance developers use form contracts that may giving away more than necessary.
I have a small stack of web dev form contracts that I've collected over the past few years. I've been able to divide my sample contracts into two piles: Those I wouldn't sign as a developer and those I wouldn't sign as a client.
Those that I wouldn't sign as a developer have broad intellectual property grants. I have one that grants all intellectual property rights to any work done pursuant to the development agreement. Taken on it's face, that could mean that the client owns all the copyrights to the final design AND draft designs that were rejected. Additionally, the client could prevent the designer from showing that job as part of their portfolio. Another possibility is that the client could also sue the developer if the developer designs a similar logo for another client.
In the other stack are contracts where the designer retains complete control over the copyrights but grants the client a license to use them. Those contracts usually do not mention a grant to use the designs in other promotional materials and something about what happens if the client's business is sold. If it isn't clear that the client can transfer the license that might be a sticking point in negotiations to sell the business. If I was having someone design a logo for my website, I would expect to be able to use the same logo on business cards, brochures, ads, etc, and be able to transfer the design with the business.
The form contracts I've seen fail to address the very real possibility that the copyright will be infringed. The owner of the copyright is the one that can enforce it. If the developer owns the copyright, the client can't enforce it on his own against a third party. Similarly, if the developer transfers the copyright to the client, then the developer is unable to enforce the copyright against someone infringing it. The problem with this situation would occur if either the developer or the client didn't care about the infringement for whatever reason, but the other party to the contract does care and wants to enforce the copyright.
I have yet to see a freelancer's form contract that addresses the possibility of a design patent coming out of the job. What would happen if the developer granted a full copyright assignment to the client, but separately patented the design? I'm not sure of the answer, but it is something to think about.
What is a better solution? The answer to that depends on what both parties want out of the transaction. Usually, both parties want the ability to enforce the copyright and to fully be able to use it themselves. That is probably not possible in most cases.
Contracts are a formalization of an agreement reached after a negotiation. If both parties simply sign a form purchased from an office supply store, a form neither party really understands, both parties are doing themselves a disservice. The better approach is to engage a lawyer that's looking out for your interests in the transaction and can advise you on potential pitfalls that a person working the register at the office store can't do.
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