Paying for the Build Is Not the Same as Owning It
Copyright in a work vests initially in its author. That is what 17 U.S.C. 201(a) says, and nothing in the Copyright Act makes payment a transfer. A company that engaged a firm, approved every design and paid every invoice may still not own the code and design files it paid for. The point tends to surface at inconvenient moments: diligence on a sale, a migration to a new agency, or a former developer taking a position on what the client may do with the site.
The routes here are ordinary. A freelancer built the front end through their own company and signed nothing beyond an emailed quote. The agency's contract said all deliverables shall be works made for hire, and everyone treated that as settling it.
Ownership decides practical things: whether the company can modify the site without asking, hand the code to a successor agency, include the assets in a sale of the business, or act against a copier.
Work Made for Hire Has Exactly Two Routes
17 U.S.C. 101 defines a work made for hire in two ways, and a work that fits neither is not one.
Route one is a work prepared by an employee within the scope of employment. The Supreme Court held in 1989, in Community for Creative Non-Violence v. Reid, that the term carries its settled common-law agency meaning, assessed across factors including the right to control the manner and means of the work, the duration of the relationship, the method of payment, the provision of benefits and the tax treatment of the worker. No single factor is decisive.
Route two covers a work specially ordered or commissioned, and carries two cumulative conditions: the work has to fall within one of nine enumerated categories, and the parties have to expressly agree in a written instrument signed by them that it is a work made for hire. The nine categories are:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
The list is closed. It is not illustrative, and it cannot be extended by contract.
Why a Website Is Not One of the Nine
A website, its source code, its visual design and its copy generally fall outside all nine. Source code is a literary work under the Copyright Act, and literary work is not on the list; software as such is conspicuously absent from it. Marketing copy for a company's own site is not, in the ordinary case, a translation, a supplementary work, an instructional text, a test or an atlas.
Arguments are sometimes made that an article is a contribution to a collective work, that a site is a compilation, or that video is part of an audiovisual work. How courts have resolved those for websites and software is not something this page will state, and as a planning basis they are unreliable.
So where a contractor built the site and the only ownership language is a work-for-hire label, that label standing alone is generally treated as ineffective to move ownership. The contractor remains the author, and the client is left arguing for implied permission whose scope is fact-dependent and varies between courts. A written assignment, not a label, is what transfers ownership from an independent contractor.
Assignment, Licence, and the Signed Writing
17 U.S.C. 204(a) provides that a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or that owner's duly authorised agent. The signature that counts is the contractor's, not the client's, so a purchase order signed only by the buyer does not satisfy it. And transfer of copyright ownership is defined to exclude a non-exclusive licence, which is why a non-exclusive licence can arise with no signed document at all.
That is the gap many agency contracts sit in. The client believes it bought ownership; the clause grants permission to use.
| Assignment | Licence | |
|---|---|---|
| Effect | Ownership of the copyright, or of particular exclusive rights, moves | Permission to use; the author keeps title |
| Signed writing | Yes, under 204(a) | Exclusive yes; non-exclusive no |
Careful agreements carry both: a present assignment in the present tense, a work-for-hire designation to the extent applicable, a fallback perpetual sublicensable licence if the assignment fails, and a warranty that every freelancer and offshore partner who touched the work assigned their rights to the agency first. That last item is where assignments most often break.
What Gets Handed Over, and What the Agency Cannot Assign
Ownership on paper is worth little if the artefacts never arrive in usable form. Deliverables work better defined by artefact than by activity: a repository in the client's own organisation holding all application source, the editable design project in the client's design organisation. Acceptance needs its own clause — who tests, against what written criteria, and what follows a rejection. Data portability is separate: content, media, form submissions, analytics exports and logs, exported at termination in a documented, non-proprietary format rather than at then-current professional services rates.
Then the parts the agency does not own. Permissive licences such as MIT, BSD and Apache-2.0 generally require copyright notices and licence texts to survive into the distribution. Copyleft terms attach conditions to distributed code, at file or library level under MPL-2.0 and LGPL and more broadly on distributed derivative works under GPL, and AGPL-3.0 extends the source obligation to users interacting with software over a network. The answer is a bill of materials listing every component, version and licence, delivered with each release.
The Rest of the Contract a Reviewer Checks
Domains, DNS, hosting and certificates read better as facts about accounts than as duties. The client is registrant of record for every domain registered in connection with the work, in its own registrar account, on a role-based address. DNS zones sit in a client-controlled account even where operational management is delegated. Certificates and the records that authenticate email need a named owner, since certificate expiry is a common cause of post-termination outage.
The IP indemnity works better when it names the exposure: claims arising from photographs, illustration, video, music, fonts and icons, and from third-party and open-source code. Two mechanics decide whether it is real — whether it survives termination, since image demand letters commonly arrive long after a project ends, and whether it sits outside the liability cap. An indemnity capped at fees paid is a refund with a longer name.
Warranties, term and transition close the loop: notice periods, a cure period for cause, exit assistance as a positive obligation at a pre-agreed rate, and an express list of what survives. An assignment that does not survive termination is not an assignment.
The Site Is Built and Nobody Can Find the Contract
This is the common situation, and it is workable. The sequence that tends to help:
- Assemble what exists. Proposals, statements of work, purchase orders, invoices, emailed approvals, any signed master agreement. In many engagements the only writing is a thread, and whether a thread amounts to a note or memorandum of a transfer signed by the contractor is exactly what gets argued.
- Inventory who made what. Repository commit history, design file authorship, the media library, the list of subcontractors. Work by employees within the scope of their employment sits in a different statutory position from work by contractors.
- Establish current control. Registrant of record on every domain, and administrator of record on hosting, DNS, repositories, design tools and analytics. Control is often more urgent than ownership, and usually easier to fix.
- Ask for a confirmatory assignment. While the relationship is intact, a short signed instrument confirming transfer of all right, title and interest is usually uncontroversial.
- Take it to counsel with the file assembled. The useful question is not whether the company owns the site, but what rights these documents demonstrate, what is missing, and what paperwork closes the gap.
If It Becomes a Dispute
When ownership becomes a formal dispute, the questions counsel needs answered are technical and dated. Who wrote which parts of the code, and when? What did the repository history show before handover, and which commits came from which accounts? What did the site display when the relationship ended?
Answering those means reconstructing repository and deployment history, archived captures of the site, dependency manifests, and the platform records showing who held administrative control at each point. That is the kind of examination an expert witness is engaged to carry out and to explain in terms the other side can test.
The binding constraint is preservation. Agency workspaces are deleted when a client relationship closes, build and access logs rotate on schedules measured in weeks, and design tools purge project history when a subscription lapses. Instructions to preserve the repository, the design workspace, the hosting account and the correspondence that stands in for a contract are worth issuing when a relationship begins to fail, not when proceedings begin.
Frequently Asked Questions
Our contract says the work is a work made for hire. Is that enough?
Standing alone, usually not, where the work was done by an independent contractor. 17 U.S.C. 101 allows a commissioned work to qualify only if it falls within one of nine enumerated categories and there is a signed written agreement saying so. Website code and design generally fall outside those categories.
What moves ownership is a present, signed assignment of all right, title and interest in the deliverables.
Can our former developer stop us from changing our own website?
It depends on what was agreed, and it is a question for counsel with the documents to hand. If no assignment was signed and the developer was a contractor rather than an employee, the developer may remain the copyright owner.
The company's position then rests on whatever permission the engagement shows, and the scope of any implied permission is fact-dependent and differs between courts. The practical step is a confirmatory assignment while relations are workable.
Does our agency have to give us the source code and design files?
Only if the contract says so. Ownership of copyright and possession of usable files are different things; a company can hold a valid assignment and still have no editable design project and no deployable repository.
The arrangement that avoids this is structural: source lives in the company's own repository from day one, with agency staff as collaborators.
Should the domain and hosting be in our name or the agency's?
In the company's name, on the company's own accounts, with the company as registrant of record and at least one company administrator. Access can be delegated to an agency without moving the account itself.
This is a different problem from copyright and is not solved by an IP clause. A contract can oblige an agency to transfer accounts, but it cannot make a registrar or a host act, so account identity is best set correctly at the outset.