Arts Law – Page 11 – The Business of Creativity

Domain Names & Cybersquatting

Quick overview of Cybersquatting and Domain Name TM Issues

Here’s a quick Mind Map outlining the Trademark issues relative to domain names and cybersquatting.

Copyright Ownership and Transfer

Ownership vests in the creator unless transferred in writing.

I’ve been involved in several discussions just during the last week concerning who owns the copyright of a piece of creative work. The discussions have taken place primarily in the context of graphic design of a brochure, so we’ll go with that, but the concepts transfer easily to other commissioned work.

First, ownership vests with the creator of the work at the instant the design becomes a “tangible” expression of the idea (digital files are “tangible” for this purpose). In the case of a graphic design, then the designer owns the copyright UNLESS:

1. The work was created by an employee in the scope of the job, thus the designer on staff at the design studio does not own the work, the design STUDIO (the designer’s employer) owns the work. It’s a bit confusing in the employment situation because legally the employer CREATED the work rather than the employee, so the employer does not need a separate writing for each piece of work created by an employee. Just think of the paperwork! The only exception to this is that tenured university professors own the copyright on their articles – even if created “on the clock” as part of their job. I guess it helps to have a former professor as judge when you’re a professor litigating to retain ownership of your articles!

2. The work was created as part of a “work for hire” contract (where those words or words that mean the same thing) are used in the written contract. Note, there can be no effective “work for hire” oral contract – because copyright only transfers via a writing.

So, if you’ve contracted with an independant creative person to do some work for you, that person owns the copyright on the work (even after you’ve paid) unless they have specifically transfered the copyright to you in writing. The copyright and the physical work are “separable” – thus something like a painting or a sculpture can be sold and resold, with the copyright always remaining with the artist by default unless transferred in writing or created within the scope of full-time employment.