Both of you can be held liable. As the end user that financially benefits from your website and because you have the ability to direct and supervise your web designer, you are liable for any copyright infringement committed by your web designer. This is true whether or not you or your web designer actually knew that he or she infringed upon a copyright. Lack of knowledge is not a defense to copyright infringement (although it may mitigate your damages).
When it comes to deciding who to sue, a plaintiff will likely pursue the person with the deeper pockets. In most cases, that is the business for which the web designer was working and not the web designer himself. Therefore, you will want to take certain precautions to protect your business from copyright infringement as much as possible. If your web designer is an independent contractor (for small businesses, most are), include warranties and indemnification provisions in your agreement stating that the designer has obtained permission to use the media placed on your website and will reimburse you for any damages incurred because of infringement. While these provisions will not prevent you from being sued by a copyright holder, they will give your business a clear cause of action against your web designer for any damages you have suffered.
Whenever possible, verify that the media on your site is properly owned or licensed. In addition, ensure your agreement with your web designer contains warranties and indemnification provisions to protect you against any infringement that the web designer commits. Not only is the agreement with your web designer important for the reasons listed above, but if your designer is an independent contractor, it is also necessary to give your business rights in the work your designer creates. Without this agreement, you may actually be liable for infringement upon the works that your web designer created specifically for your business.
If you have further questions regarding copyright law or need a work-for-hire agreement, contact one of our attorneys for a free consultation.
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