Who Owns Your Website When You Hire a Marketing Agency?

Small Business Law

Most Massachusetts business owners assume the website belongs to whoever paid for it. Copyright law does not work that way.

Who owns a website built by a marketing agency?

What does copyright ownership actually attach to?

A website is not one work. It is a bundle of separately protectable material: the custom code, the visual design, the page copy, the photographs, the illustrations, and sometimes the selection and arrangement of the whole thing as a compilation. The U.S. Copyright Office addresses this directly in Circular 66, Copyright Registration of Websites and Website Content, which also notes that the Office generally refuses claims consisting only of style sheet languages such as CSS.

Copyright does not protect the domain name at all. The Copyright Office says so plainly in its FAQ on what copyright protects, and points to ICANN as the body that administers domain assignment. The domain is controlled by whoever is listed as the registrant, which is a separate question with a separate answer.

Why does paying for the work not transfer ownership?

Because Congress required a signature. 17 U.S.C. § 204(a) provides that a transfer of copyright ownership is not valid unless there is an instrument of conveyance, or a note or memorandum of the transfer, in writing and signed by the owner of the rights conveyed.

Three years of paid invoices is not a signed instrument of conveyance. Neither is a proposal that says you will “own your marketing assets,” unless the agency signed it and the language actually assigns copyright.

When does the work made for hire rule apply?

Rarely, in the agency context. 17 U.S.C. § 101 defines a work made for hire in two ways. The first covers work prepared by an employee within the scope of employment. Your agency’s designers are the agency’s employees, not yours, which puts their work outside this prong as to your business. The Supreme Court held in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), that “employee” carries its common law agency meaning, so the label on the invoice does not decide it.

The second prong covers specially ordered or commissioned works, but only if the work falls into one of nine enumerated categories and both parties sign a written agreement designating it a work made for hire. Website code and standalone graphics generally do not fit any of the nine. The Copyright Office walks through the definition in Circular 30. A contract that says “all deliverables are works made for hire” and stops there can leave you with nothing if the deliverable does not fit a category.

Table 1. Four ways a business can end up holding rights in an agency-built site, ranked roughly from strongest to weakest.

Does paying a monthly retainer mean the business owns the website?

What is the retainer actually buying?

Read the scope of work. Most agency retainers describe hosting, maintenance, updates, content production, ad management, and reporting. Those are services. Ownership of what gets produced along the way is a separate contract term, and if it is missing, the default rules in the previous section apply.

Watch for a related trap: clauses that make assignment conditional on payment of all fees. Those clauses are common and often reasonable, but they mean that a billing dispute at the end of the relationship can also become an ownership dispute at the worst possible moment.

What is a leased or subscription website model?

Some agencies do not sell the site. They build on a proprietary content system, host it on their own account, and license it to you month to month. This is a legitimate business model, and for a business that wants no maintenance responsibility it can be the right one. It becomes a problem only when the owner believes they bought an asset and later learns they were renting.

The structure shows up in the pricing. A monthly fee with no separate build charge generally means the site is licensed for the term rather than sold. Ask the question directly before signing, and confirm the answer against the agreement rather than the sales conversation.

What parts of a website can be owned separately?

Table 2. The website ownership stack. Owning one layer says nothing about the others.

Who controls the domain name and the registrar account?

The registrant of record controls the domain, and moving that record is governed by the ICANN Transfer Policy, not by who paid the renewal fee. That policy defines a Change of Registrant process, allows a Designated Agent to approve changes on a registrant’s behalf, and applies a transfer lock after certain changes. If the agency is the registrant, or if the agency is acting as the designated agent, the mechanics of getting the domain back are not in your hands.

Who owns the code, the design files, and the content?

Whoever the assignment clause names, which is why the clause matters more than the platform. There is a practical wrinkle worth understanding: an open-source content system is portable software, but the theme, the custom code, and the plugin licenses layered on top of it may not be. “It is on a common platform, so I can move it” is only a third of the answer.

Who owns the advertising, analytics, and business profile accounts?

Platform ownership is set inside each platform, and administrative access is not ownership. An account created under an agency’s manager account typically stays with that manager account unless ownership is formally transferred. The result is that a business can keep its website and still lose four years of conversion data, audience lists, and review history.

What happens if the agency contract says nothing about website ownership?

What is an implied nonexclusive license?

Short of transferring ownership, a copyright owner can grant a nonexclusive right to use the work, and that grant can arise from conduct rather than paperwork. The First Circuit described the doctrine in Estate of Hevia v. Portrio Corp., 602 F.3d 34 (1st Cir. 2010), noting that implied licenses are found only in narrow circumstances, and in John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26 (1st Cir. 2003), where the court identified intent as the touchstone.

Why can an ongoing agency relationship make your position weaker?

This is the part that surprises Massachusetts owners. In Danielson, the First Circuit pointed to several considerations bearing on intent, including whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship, whether the creator used written terms restricting how the material could be used, and how the creator behaved during creation and delivery.

An ongoing relationship can suggest the creator expected to remain involved, which is an argument against an unlimited license for the client to carry on without them. A four-year retainer is the clearest possible evidence of an ongoing relationship. The monthly payments that feel like proof of ownership can be read as evidence pointing the other way.

What evidence matters when the contract is silent?

Proposals, statements of work, emails describing what the client would receive, invoices, how the accounts were set up, who paid the registrar, and what the agency said at delivery. Whether any of it adds up to a license is fact-specific and decided case by case, which is precisely why the outcome should never be left to this analysis.

Can a Massachusetts business keep its website after ending the agency relationship?

What usually moves without a fight?

Page text you wrote yourself. Photographs your company took or licensed directly. A domain registered in the company’s legal name. A hosting account billed to the company card. Anything the company set up itself tends to stay with the company.

What usually does not move?

Stock photography licensed under the agency’s subscription, because those licenses generally run to the licensee and do not transfer with the files. Per-seat or agency-tier theme and plugin licenses. Custom code with no assignment clause. Sites built on a proprietary platform, where an export of the content is not a migration of the website. Platform accounts where the agency is the owner rather than an added user.

What does a proprietary platform lock look like in the contract?

Look for language granting you a license to use the platform “during the term,” a definition of deliverables limited to content rather than code, silence on source files, and no transition or offboarding obligation. Any one of those is a signal. All four together mean you are renting.

What should a Massachusetts marketing agency contract say about ownership?

Table 3. Nine clauses that decide what happens on the day the relationship ends.

Should assignment happen on creation or on payment?

Either can be reasonable. Assignment on creation is cleaner for you. Assignment on payment for the specific deliverable is a fair compromise, and it is meaningfully different from assignment conditioned on payment of every fee under the agreement. The second version hands the agency an ownership card to play in any billing dispute.

What should the delivery obligation actually list?

Name the artifacts, not the concept. Editable design files in their native format, a complete code repository, a database export, the media library at full resolution, a list of every third-party license with its license type, and a credential inventory covering the registrar, host, CMS, analytics, ad accounts, and business profile.

What behaviors show that the business, not the agency, owns and controls the site?

Table 4. A control audit you can run in an afternoon.

How often should this be verified?

Once a year, and again whenever the agency changes account managers or you change agencies. The federal CISA Secure Our World guidance on multi-factor authentication is worth reading alongside this, because the account that holds your recovery codes is the account that really controls the asset.

Control of the site also determines who is responsible for keeping it compliant. If you cannot edit the code, you cannot remediate it, which matters for website accessibility obligations as well as for privacy notices and disclosures.

What can a Massachusetts business do if an agency refuses to hand over the website?

What should the business gather first?

The signed agreement if one exists, every proposal and statement of work, the invoices, the email thread describing what would be delivered, registrar and hosting records showing who paid and who was listed, screenshots of current account roles, and a written timeline of what was requested and what was refused. The strength of the position usually turns on documents, not on what was said on a call.

Which claims may be available?

Breach of contract, where a signed agreement contains a delivery or assignment obligation. Conversion, where the agency exercises control over identifiable company property. And M.G.L. c. 93A, § 11, which lets a business that suffers a loss of money or property from another business’s unfair or deceptive act in trade or commerce sue for damages and equitable relief, including an injunction. Section 11 does not require the thirty-day demand letter that consumer claims under Section 9 require, and multiple damages are available where the violation is willful or knowing.

Not every refusal is a 93A violation. An agency enforcing a clear contractual term is not acting unfairly, and an ordinary fee dispute is an ordinary fee dispute. The analysis is fact-specific.

Why self-help is the wrong instinct

M.G.L. c. 266, § 120F makes it an offense to knowingly access a computer system without authorization, and provides that the requirement of a password or other authentication is itself notice that access is limited to authorized users. Using an old login to pull files after the relationship has ended is a bad idea, and it converts a clean contract dispute into something else. The same statute is part of why an agency that locks a company out of its own accounts is in a poor position.

When does a demand letter make sense?

After the record is organized and the ownership position is understood, and before the domain renewal date. Renewal deadlines and platform data retention windows create real urgency that has nothing to do with legal strategy. If the domain is registered to the agency, the ICANN change of registrant process and the applicable transfer lock will shape the timeline, so the letter should account for it.

Related reading for Massachusetts owners: contract review and drafting for vendor and service agreements, business formation and owner-risk planning, and small business collections when a dispute involves money owed in both directions.