T. H. Buscaglia and Associates
80 Southwest 8th Street
Suite 2100
Brickell Bayview Center
Miami, Florida 33130
305.324.6000 Tel
305.324.1111 Fax
thombusc@intelaw.com
WHOSE WEBSITE IS THIS ANYWAY?

WHOSE WEBSITE IS THIS ANYWAY?
March 1997

Last time we reviewed issues that involve names for website locations on the Internet. This time we will take a look at the digital content of websites and related legal issues that anyone entering the cyber marketplace needs to know. By the way, many of these principles apply to other forms of content which both content suppliers and users may find helpful.

Two basic elements are essential to a successful commercial website: first, having strong content; and, second, getting people to look at it. Content for websites is contracted out to specialists who, hopefully, possess a high level of technical knowledge as well as significant artistic ability to create a website that functions properly and is visually appealing. Of course, with current Aoff the shelf@ web page author programs, even a nontechnical person can take a shot at creating a basic web page and get something up and running on the Internet in a few days. However, a successful commercial site demands the kind of technical and artistic assistance that for most businesses requires an outside consultant. And, as with any outsourcing, a list of solid references and a portfolio of prior work should be considered prior to any buying decision.

Content and Copyright

As with any original authored work, the digital content that comprises a website is subject to copyright law. Copyright law protects the proprietary rights of the creator of graphic, musical, film and other creative works. Unless the work is generated by an hourly employee, classified as Awork for hire,@ where the employer holds the copyright, the creator of the work owns it regardless of who uses it. All other work product obtained by outsourcing is not Awork for hire,@ unless that status is clearly agreed to in the contract between the parties.

Photographs are the most familiar example of the way copyrights work. When one obtains a photograph for use in an advertisement, what is purchased is a right to use, not ownership. And this is true even if you hire the photographer and tell him what you want to shoot. The photographer owns the image, the purchaser has a specific use right and no more, unless agreed otherwise.

Similarly, consultants who create websites retain ownership of the digital content. Just like the websites you looked at before you hired them, consultants use these sites as examples of their work. Content providers legally retain absolute artistic and technical control over the website as long as it is in use. However, because of the ease with which both content and images can be manipulated in these digital mediums and the desire to have a flexible, even organic, quality to websites, the control of the content of your website can become a difficult issue. The digital technologies change daily and the maintenance, modification and fine tuning of a successful website is an ongoing concern.

Your relationship with your website consultant may well last for a long time. But, as they say, things change. Perhaps the consultant who created your website goes out of business or the individual who actually created your website was an employee of the consultant and leaves its employ. As a result of either of the above, or even mere complacency, the quality of the work being done by the consultant deteriorates. In this case, you may have a substantial investment to which your legal right to control, alter and change is either restricted or, worse yet, prohibited by law.

These types of problems happen when businesspeople lack a clear understanding of their rights and duties under the law. The above problems can be avoided by proper negotiation and drafting of an agreement between the user and the content provider. The content provider=s rights under copyright law are subject to modification by contract. In fact, the conventional wisdom in the industry surrounding these digital mediums is that licensing agreements are supplanting copyright law as the preferred way to identify, control, preserve and regulate the rights of parties. Forewarned is forearmed; and as with any worthwhile venture, entrepreneurial courage, tempered by education and forethought, can minimize risk and maximize opportunity.

Intelaw.com © 2005