Wednesday, February 13, 2013

Who Owns Non Profit Website Content?

Dear Rich: Our small non-profit executive director created our website and much of the content (other content, logos, all photos etc, was provided to her by myself). Upon her stepping down as Executive Director, she deleted the website and all of its content. Apparently she feels that since she created it, it is hers. Because she created it as Executive Director and the website was a job responsibility of hers, wouldn’t the intellectual property and the website belong to the organization? There are no paid “employees” of the non-profit, but she did have an official title and is on the non-profit legal paperwork, checking account, etc. We are trying to recover the content because it is a big hit to the non-profit to lose all of our web content, it’s formatting, links, material, etc. Note, we have tried to have moderator access to the website from the start, but she has always been possessive and protective of it – now we apparently know why. Before addressing your legal issues, are you aware that you may be able to recreate the website using the Internet Archive's wayback machine? Your tech advisors may be able to copy the HTML (source) code by right clicking on the archived page, and then use that code to recreate the essential page elements.
If she was an employee ... If the executive director was an employee of the nonprofit, and if the website was created within the course of her employment, then the nonprofit owns all the content including the appearance and design. That's a basic principle of copyright known as an employee work made for hire. However, having an official title of executive director and managing the checking account don't necessarily make her an employee. Use the government standards for judging whether she can be categorized as an employee or contractor.
If she wasn't an employee ... The nonprofit might still own all rights to the website if there is a contract or other paperwork setting out the executive director's obligations and transferring ownership to the nonprofit. Also check the nonprofit's bylaws in the event they address the ownership issue. Even if there is no paperwork and you conclude the director was an independent contractor, not an employee, there's a good chance that the nonprofit acquired a nonexclusive implied license to use the materials provided by the executive director. Finally, it's possible that the elements contributed by the director are not copyrightable by her --  perhaps because they are based on other material or because they lack sufficient originality to qualify for copyright protection.