A Legal Blog by Aaron | Sanders, PLLC

Implied License Saves the Day (But it Doesn’t Always)

Implied Licenses Are a Last Resort

In the day-to-day counseling about copyright matters, this is perhaps the most common fact pattern, and it’s surprisingly sticky. Company X has hired creative firm Y to create something for it. “It” could be almost anything: computer software code, a logo design, promotional copy, a website, packaging, a photograph—anything that you might want to outsource rather than develop in house.

Normally, when you hire somebody to make you something, you own the final result. If you hire an interior designer to pick out and configure appropriate furniture for your office, you own the furniture once you buy it—and the particular configuration of furniture that your designer recommended. Not the interior designer, and not the furniture manufacturer.

Hiring (Creative) Guns

But creative works are different. By default, the copyright in a work belongs to the creator, not the commissioning party. There are only two exceptions to this. First, if the creator is your employee, and made the work in the scope of her employment, then you are the owner.

But didn’t we say that we had outsourced the work? That means our situation can’t fall in this exception, right? Not exactly. It turns out the law cares much more…

Want a Mercedes? We got lots of 'em! Credit: Diego Delso, Wikimedia Commons, License CC-BY-SA 3.0

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Whoops Did You Just Give Away Your Copyright?

Common-Sense Decision Is a Trap for the Unwary (and Everyone Else)

A surprisingly fertile field for litigation are “multiple listing services” (MLS) and related real-estate websites. Here’s an MLS for Nashville. The Internet completely inverted the information-relationship between real estate agents and prospective buyers. It used to be that the agents’ main advantage was knowledge of what was for sale, but thanks to MLSs, this information is easily accessible. The very powerful National Association of Realtors jealously guards the trademark rights to MLS (to the extent they even exist)*.

* I know this from personal experience, as I have represented two real estate agents who had the temerity to use MLS in one of their domain names. Did you know that Realtor associations have their own highly complex dispute-resolution and enforcement procedures, completely with their own rules of procedure? I was honestly impressed.

This information is obviously of tremendous value, but protecting it is tricky. Data can’t be protected by copyright. Even if “hot news” is a thing, this data isn’t “hot news.” You can place the data behind a wall, but how is the public supposed to access it? You can place anti-scraping language into your terms of use,…


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