7

I build websites. I've used a copywriter to provide the website copy, the client paid the writer directly.

I placed copyright signs on the site for the writer as requested. However, they have now fallen out with the business owner and have asked me to remove all their copy as they claim to own it.

I've researched this, but all I can see is that if the writer has been paid for their services, they can no longer claim ownership of the copy and it belongs to the business owner who paid for their services.

Is the above true, is either party in a stronger legal position?

  • 2
    Important clarifying questions: Was the writer a contractor? Was the writer working under a formal contract? If so, does that address ownership? – Adam Miller Feb 13 '17 at 18:39
  • 1
    At least in some countries verbal agreements are formal contracts. Just because it is said rather than written doesn't mean it isn't legal. If you agree something verbally it is binding. Meeting minutes or diary entries can be evidence, as well as other people witnessing the discussion. – S. Mitchell Feb 13 '17 at 19:25
  • 4
    Tell the writer that a request to remove content can only come from your client. If your client and writer are in a disagreement, that's up to those two to figure out. – Liren Feb 14 '17 at 12:05
  • 1
    You are getting useless answers because you asked the wrong question. You don't really care who owns the copyright, you care whether the use on the site is lawful, that is, whether the use is within the scope of the license granted. (Which it almost certainly is.) – David Schwartz Feb 14 '17 at 17:35
  • 2
    Actually, what you really should have done is ask what you should do. And the answer is that you have no authority to modify the web site without the client's permission since it is not your web site. You should respond to the author that you have no way to know what license your client does or does not have or who holds copyright and that you will gladly remove the content if your client asks you to do so. Explain that you have no authority to remove the content, only your client does. – David Schwartz Feb 14 '17 at 18:12
7

In work-for-hire arrangements, the paying customer usually owns the copyright. It sounds like there was nothing in writing or any discussion about whether it was work-for-hire or simple use of the writer's text.

Without the terms stated explicitly, there is a lot of ambiguity. Some things to ask:

Did the author have a byline in this text? Did the copyright statement say Copyright by John Smith or Copyright by ABC Company? Was there any mention of exclusive use of the text? Was there discussion of time limits? What country is this in? (Non-US countries have "moral rights" for the author but an equivalent doesn't exist in USA). https://en.wikipedia.org/wiki/Moral_rights

I think the answer depends on whether this was a work for hire arrangement or whether the author retained copyright control but authorized a specific use to the client.

I am not a lawyer, etc.

Check out these links about work-for-hire arrangements in USA https://www.copyright.gov/circs/circ09.pdf and https://en.wikipedia.org/wiki/Work_for_hire

From the federal copyright doc:

A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire.

I interpret that to mean that without a written agreement using the specific phrase "work for hire", you have to assume that the author retains copyright and is granting use to the client.

  • 5
    Apart from the legal question, usually in these transactions it is assumed that the website owner has the right to keep this material on the website indefinitely unless some earlier terms have specified limits in duration or terms that must be met. Unless otherwise stated, it is assumed that the company doesn't have the right to re-use the content in commercial contexts other than originally agreed upon. I am speaking more about norms here rather than law. As mentioned above, in Europe authors additionally have "moral rights" which allow them to object to certain uses even in work for hire. – idiotprogrammer Feb 14 '17 at 5:05
26

If you're in doubt about your legal obligations, find a copyright lawyer and get some professional advice.

  • 4
    This should really just be a comment. – curiousdannii Feb 14 '17 at 10:51
  • 11
    This is a perfectly legitimate answer. It is, in most locales, a legal issue and the proper answer in most countries is that a writer or non-laywer cannot provide an authoritative answer. The best they can do is provide opinion. If the OP is concerned about the proper legal position, they should consult a proper legal counsel. – David W Feb 14 '17 at 13:58
  • 2
    I thought about making it a comment, but it really is the best advice. If there really is bad blood in this arrangement, and the copywriter is thinking of lawyering up, the web designer needs to make sure his action (or inaction) doesn't land him in legal trouble himself. Since I doubt anyone here is a lawyer who knows all the legal ramifications of the locale (or locales) involved, getting a brief consult with an expert is where you want to go. – Adam Miller Feb 14 '17 at 14:13
  • 2
    It could be safe to assume the asker is actually looking for advice despite not mentioning that in their question. It's just as safe to assume that the asker has already extricated themselves from the problem, and is now merely curious. There are other possibilities, too. Ignoring the question in favor of guessing at the motive behind it is not answering the question. This is therefore not an answer. It belongs as a comment. – talrnu Feb 14 '17 at 22:01
  • 1
    @DavidW and were this a forum, I would agree with you. But it isn't. Answers are suppose to be of value to others. Saying this should be a comment is not condemning it, it is simply identifying it proper place in the format of the site. It is good advice on the specific case, but it is not an answer to the general question -- which is eminently answerable. – Mark Baker Feb 15 '17 at 16:44
19

Your business is with the client.

Tell the writer to contact the client. Inform your client about the demands the writer made and ask him what he wants you to do, tell him that the risk is his.

Do all this in email, not verbal.

  • 1
    This does not answer the question. – Lightness Races in Orbit Feb 14 '17 at 11:41
  • 4
    It doesn't answer the question asked, but it really looks like the OP asked the wrong question because he incorrectly believed that ownership of the copyright was the key issue. If ownership of the copyright has no bearing on what he should or shouldn't do, then answering the question asked does the OP no good. – David Schwartz Feb 14 '17 at 17:41
  • 7
    It may help to explain this with an analogy. If you walk into a Taco Bell and you see a poster that you think infringes your copyright, you don't ask a random Taco Bell employee to take the poster down just because they physically can. You find the person who has the authority to decide which posters go up. The OP has no way to know what license his client does or doesn't have or what his agreement was with this writer. – David Schwartz Feb 14 '17 at 18:15
  • 2
    @LightnessRacesinOrbit I think this is an XY Question. (The OP gave us that scenario, then asked the wrong question as David Schwartz put it.) The important question isn't "who's right on the copyright issue?", it's "what's my responsibility in a legal dispute between my client and someone he hired to do work for him (a transaction to which I was not a party)?" – Monty Harder Feb 14 '17 at 19:43
  • 1
    @LightnessRacesinOrbit "It is not for us to judge what the OP should have asked; we are here to answer what the OP did ask!" I could not disagree with this more strongly. That does a terrible disservice to the person who asked the question and betrays the trust that experts work so hard to earn. You should be able to rely on the answer of an expert and not get screwed just because you didn't know enough to ask the right question. An expert who screws you over with the wrong information, even if accurate, because you asked wrong is a terrible expert. – David Schwartz Feb 14 '17 at 23:08
11

It all depends on the contract.

(Bear in mind that I'm not a lawyer. This is my amateur understanding of U.S. copyright law.)

If the client was foolish enough to purchase the text from the writer and not insist on a release, then the writer still owns the copyright to the text.

If the writer was working as a salaried employee, then any material produced would be the property of the company. But if the writer is a contract worker, then the writer does indeed own the copyright until and unless it is explicitly released. The writer can release it for a duration, for a specific purpose, or not at all.

In graphic design, when you design something for a client, you write something in the contract explicitly releasing the copyright to the client so that the client can use the finished work. If that finished work is a logo, the rights are unlimited. If the finished work is an illustration, the release might say "You can publish it in your book, but you can't put it on a T-shirt and sell it." The client explicitly does not have the right to any comps or alternate designs which the client didn't use and didn't pay for.

My (again, not-a-lawyer) interpretation of copyright law is similar here. If the writer produced something, even if it was paid for, the writer owns the copyright until the writer releases said copyright. If the client didn't secure the intellectual property rights to the copy, that's not the writer's fault or problem.

  • 1
    @LaurenIpsum: I don't follow your logic. If the writer retains copyright and can ask at will for the removal of his writing, what did the client paid for? – Martin Argerami Feb 14 '17 at 12:37
  • 1
    @MartinArgerami It's a facet of copyright law. The artist/creator is licensing the work for a specific usage. The client can (and usually does) purchase the rights to use the text in perpetuity. I agree that's reasonable and typical. But if the client didn't exercise his/her reasonable rights, that's not the writer's fault. The writer is taking advantage of the client's ignorance and the looseness of the lack of contract. I'm not saying it's proper, or typical, but it is legal (I think, in the U.S. Not a lawyer.). – Lauren Ipsum Feb 14 '17 at 13:08
  • 1
    @MartinArgerami The client is paying for the artist's labor. If the client forgot to ask to pay for the rights of ownership as well, that's on the client. Labor/time and ownership are not the same thing. – Lauren Ipsum Feb 14 '17 at 13:09
  • 1
    @MartinArgerami Another example: for my party or some event, I pay a musician to compose some new music that will be played. Both kinds of contracts are reasonable: (1) I'm just paying the musician for the work of composing the music and for the right to use it at my event, but the musician will own the work and later release records of it or whatever, (2) I'm paying the musician for ownership of the work (its copyright). Note that I may not be involved in the music business so I may not even have any interest in owning a musical work. – ShreevatsaR Feb 15 '17 at 17:11
  • 1
    @MartinArgerami Also, note that even if you buy MS Office as a permanent purchase, you're only buying perpetual use of the software: you're not buying the copyright itself. (Microsoft can still sell Office to other customers.) But you could imagine an arrangement with a programmer where you buy their program including the copyright, so that the programmer cannot distribute it to anyone else. So there are two things here: (1) Did the buyer buy the copyright as well? (2) If not (which is the default), what is the duration of use that was bought? (What were the terms of the "release"?) – ShreevatsaR Feb 15 '17 at 17:15
4

Let's imagine this goes to court. I'm not a lawyer, and I only have one extracurricular university course of IP law under my belt, but I do have logic. Here's what I think will happen:

First, to summarize the argument:

  • The artist believes the contract was worded to license the use of the copy on the website.
  • The website owner believes the contract was worded to sell the rights to the copy.

The most direct course to resolution will be to reconstruct the verbal agreement and analyze its wording. If the terms of the verbal agreement are particularly clear, then nothing else matters. However, this is unlikely - even if both parties somehow agree on what the exact wording was, that wording is sure to be far from comprehensive or explicit. So we need to consider other evidence.

I placed copyright signs on the site for the writer as requested.

If you're saying that the website's owner has permitted all of the writer's copy to be marked "copyright [writer's name] 2017" on the own website, then the writer will be able to point to this as evidence that the website's owner has acknowledged and failed to refute the writer's copyright while profiting from that copy.

The website owner will need a reasonable explanation for why they would mark the text as copyrighted to the author while profiting from the copy but then dispute that copyright when their business relationship changed. Since the website is easily accessible, and the owner has absolute power over its content, "ignorance" seems to be their only excuse.

On the other hand, the website's owner might have some ammunition if it can be proven that a single fee was paid for the copy, with no stipulation on how long it could be used. A license ought to have a time or expiration element, e.g. "you can use my copy for $30 per month" or "for $100 you can use my copy for a year". An indefinite license seems unusual, it either gives the copyright holder too much power (being able to terminate the license at will, e.g. after one day) or effectively amounts to sale of the copy (preventing the copyright holder from ever terminating the license), so it's not very good for business.

If the wording of the contract is too ambiguous, then the nature of the transaction is a strong indicator of the nature of the agreement. A single payment followed by a long period without payment is much more like the purchase of content rather than payment of licensing fees. A creative lawyer might be able to run with this.

3

I am not a lawyer. But in school I did have a class entitled "engineering and the law" taught jointly by a lawyer and an engineering prof. They said that if there is a contract, the owner is as specified in the contract (normally the client). If the contract doesn't address the issue, the copyright resides with the author. If the client paid the author, there is an implied permission to use the work in the context it was written for. The upshot would be that the author (in the absence of other contract provisions) can reuse the work in other contexts, cannot deprive the client of use in the intended context, and the client cannot use it in another context. As I understood it then.

As others have said, you had best speak with a lawyer.

0

I've researched this, but all I can see is that if the writer has been paid for their services, they can no longer claim ownership of the copy and it belongs to the business owner who paid for their services.

A writer owns the copyright to their work, unless it is specifically a "work for hire" which is a legal term, that only applies if there is a contract that specifically states it. It doesn't happen by accident. So then what did the client buy? There really is no telling without seeing the contract. The grant could be vague like the business is allowed to use it, it could be specific and say the website could use it (in which case it would be illegal to print in a brochure). Then there is the length of time the rights are granted, there could be specific time limits, or in perpetuity (forever).

In my limited experience, freelance copywriters usually assign all rights in perpetuity to the client upon full payment. The copywriter will also retain the right to use the work for their portfolio. My guess would be if the client paid the copywriter in full then the client has all the rights to it. You work for your client not the copywriter so unless you have some vested interest in keeping the copywriter happy, do what your client says.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.