Flattery is overrated

When a website Happy Cog worked on launches, it is immediately scrutinized. Many of our peers view the source code, check for typos, examine if the web fonts are rendering appropriately, or see if they can find something misaligned or otherwise out of whack. If they find something, they tell us about it. It’s kind of amazing that people make the effort, and we appreciate that people care enough to do it.

Then there are the quiet few who simply choose to use our work as their own. Over the past couple of years, we’ve noticed quite a few instances of folks not just drawing inspiration from our designs, but downright ripping us off. And it’s infuriating.

The simple truth is this, there’s not a snowball’s chance in Scottsdale you have any sort or recourse if you haven’t taken the appropriate steps to protect your work. I’m not talking about simply slapping a Creative Commons license notice in the footer of your site, either. I’m talking about good old fashioned, slower-than-molasses copyright protection. According to the U.S. Copyright Office, “the original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.” Check out the sassy Circular 66 [PDF], Copyright Registration for Online Works.

Make what’s yours, yours.

Now, I’m not a lawyer, so please don’t think I’m dealing legal advice (see the disclaimer at the end of this article). You should definitely talk to your own trusted counsel – let them school you on Creative Commons vs. governmental copyright protection. But, I’ve had a conversation or two about this topic with professionals who have walnut-framed degrees on their walls, and I have some experience to share.

So here’s a freebie for you—own your work by filing for a copyright as soon as you’ve presented your comps and your client has chosen a “final” design direction. You can get it filed using the awful copyright office website, through an intellectual property attorney, or through a myriad of other services. Don’t expect your copyright certificate right away—it will likely take the copyright office a long time to process your application. As of the time this article was published, the average time for the U.S. Copyright Office to process an e-Filing is three months, and the average processing time for paper forms is ten months. That said, it doesn’t mean you’re not protected under copyright law while your paperwork percolates.

Then, after you turn the work over to your client and get paid for your final invoice, transfer the copyright over to them. Yep, you can do that. Enjoy Circular 1, Copyright Basics [PDF], in the ‘Transfer of Copyright’ section for a discussion of ownership. When you own it, you have the legal grounds to pursue the infringing party through appropriate legal channels. If your client owns the work, the onus is on them.

So how can you lay the groundwork for ownership in your client engagements? It starts with the contract. Ours states the following:

Ownership: Except as described below and unless otherwise agreed in writing by Happy Cog and Client, the copyright and all other rights relating to any design and/or code deliverables provided to the Client by or on behalf of Happy Cog pursuant to this Agreement (the “Intellectual Property”) will remain the property of Happy Cog or, where applicable, its licensors until payment in full for services rendered is received. Upon payment in full for the services and deliverables provided by or on behalf of Happy Cog pursuant to this Agreement:

• Happy Cog will transfer to the Client (where applicable for the combined deliverables) full ownership of the Intellectual Property for Client’s own business purposes. In the case of any third party software, Happy Cog will transfer all applicable licenses or obtain a sub-license in favor of the Client in similar terms as listed above.
• Happy Cog will provide Client with all source materials and files for further reference, re-use, and modifications as deemed appropriate by Client for Client’s own business purposes.
• Happy Cog warrants to the Client that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement, and the use by the Client of any deliverables or works provided by Happy Cog will not infringe the rights of any third party.

Feel free to use this clause in your own contract, or modify it as you wish with the assistance of an intellectual property attorney.

Also, here are some interesting links to check out on the topic of copyright protection:

• Who owns the copyright in your website? by Ivan Hoffman, B.A., J.D.
• Did you remember to copyright your website? from LegalZoom (note: LegalZoom is not a law firm)
• How to copyright a website from eHow

If you’ve been the victim of infringement, I’d be interested in knowing what your stories are and how you dealt with them. To the extent that you can, please share your thoughts with the class.

Now go out there and start protecting what’s yours.

Disclaimer: I am not a lawyer, and I am not licensed to give legal advice. This article is not intended as legal advice, it’s intended to spur discussion and to provide only general information. This article is not intended to cover all the issues related to the topic discussed.

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