Software developers and designers may not always realize it, but they are often at direct risk of infringing on copyrighted materials in their day-to-day work. Whether it’s an image, music, or specific source code, inadvertently using something that’s under copyright protection – or using something that someone claims is under copyright protection – can quickly land a professional in hot water.
Hot, icky, lawsuit water.
Many companies enjoy some coverage for advertising injury and copyright infringement with General Liability Insurance. However, certain types of businesses don’t receive those same benefits due to the nature of their work. Creative types, professionals who design or generate ideas and their expressions, toe the line of copyright law every day. Basically, they need something more specialized than General Liability coverage.
How should developers and designers protect themselves?
Intellectual property attorney
Bryan Wheelock, principal at
(@HarnessDickey) weighs in with his advice.
Look Out for Yourself: Protective Agreements, Reputable Consultants, and Proactive Management
Developers can be held liable if the software they reproduce and distribute infringes a copyright.
“That’s why developers need to proactively control who contributes to their software and what they contribute,” Wheelock explains.
In order to do this, Wheelock suggests that developers…
- Put the proper protective agreements in place. These written contracts should address ownership of the software, expectations of the consultant, and representations and warranties that these expectations will be met.
- Deal only with reputable consultants and programmers. “The best software agreement is one you never have to look at again, and that is most likely to happen when you deal with experienced, reputable professionals,” Wheeler says.
- Proactively deal with the creators of the software. By doing this, you “can be assured that the necessary rights are being acquired and that inappropriate material is not being incorporated into the software,” Wheelock says.
See Risk and Project Management for IT Professionals for more proactive tips.
Lesser-Known Copyright Conundrums: Ownership Issues and Open Source
When people think of copyright infringement, they often imagine lawyers from movie studios, music labels, or huge software companies coming after them. But the biggest copyright infringement threats you face might be right under your nose.
Wheelock points to two considerations every developer should keep in mind:
1. Ownership issues. If a developer uses third parties to create software, the developer should require a written transfer of ownership for any work completed, whether they’re contractors or subcontractors.
“Without careful attention to the ownership of the code, the developer may find that it has to account to co-owners for the use and sale of the software, and may even face competition from the other co-owners,” says Wheelock.
2. Open source software. “The incorporation of open source software and its commercial distribution may be a violation of the open source license agreement or, even worse, copyright infringement,” Wheelock says.
Before open source software is used, the developer needs to understand the particular licensing scheme under which the software was made available. For example, some open source licenses require that the final software product be made freely available. If you try selling it, you’ll be hit with a copyright lawsuit.
To summarize: unless you’re creating everything by yourself from scratch, be aware of the legal baggage that comes with using third-party help or software.
Can Professional Liability Insurance Cover Copyright Infringement?
Say all your proactive attempts fall short, and you still experience a claim for copyright infringement. Without the advertising injury coverage of General Liability Insurance, can developers and designers count on any policy to help them? Perhaps.
“Specialized insurance is available for such claims,” Wheelock says.
When purchasing business insurance, ask your agent about including copyright infringement coverage in your Errors and Omissions Insurance. Since copyright concerns fall into your professional duties, it would have to be included in the policy that addresses your professional liability.