Common Errors in Seeking Website Copyright Protection

Last week, the IT BusinessEdge blog quoted me about copyright protection for websites in an article entitled “How Much Will You Do to Protect Content?” The article fleshes out some of the benefits of copyright protection, including statutory damages, attorney’s fees, but implies that the copyright protection process seem unwieldy and perhaps not worth the effort. Although I was quoted in the article, I cannot agree with its overall message. I would answer the article’s title query but saying that protecting a website is a smart business move. If the website is initiated properly, the process is painless and adds value to your brand.

The website is an expression of your brand’s creativity, your image, and your philosophy. Your website may contain presentations, marketing materials, and other expressions of your brand that you would not protect in any other format. You would not want a competitor to copy these elements or the overall look and feel of your website. Indeed, your website is as worthy of protection as your trademarks, your trade secrets, and your client lists. In addition, companies’ branded identities typically carry over into social media pages. Thus, it is more essential than ever to obtain copyright protection on your company’s signature look and content.

The registration process is not difficult or lengthy. Certainly, there are many circulars offering advice at the Copyright Office’s website. That being said, it might be beneficial to seek legal advice because of some of the particulars of website registration. Here are some common mistakes that make the copyright registration and protection process more onerous than it has to be.

1. Not using original content. All content, including text and images, should be original to you to avoid any third party claims for intellectual property infringement. Scraping has become all too prevalent and frequently results in copyright infringement claims. A few weeks ago, I posted a blog entry entitled “Five Common Legal Errors in Internet and Social Media Marketing.” The first error I noted was the “Copyright Mistake.” Ironically, a couple of weeks later, I became aware that someone had scraped my content without proper attribution to me and certainly without permission. I contacted the website owner, and after a short, friendly dialogue, he apologized and took down the scraped content. This had a positive ending, but generally, you do not want to receive an attorney inquiry about misappropriation and copyright infringement. The best strategy is not to copy!
2. Not clearing photographs properly. Do not assume that photographs that are not watermarked or bear a copyright notice are free for taking. Use stock photo houses that offer a perpetual license to avoid any complications. (Read the Terms of Use to make sure what you are getting, and if you do not understand them, do a quick check with legal counsel.) If not buying from a stock photo house, be aware that the onus is on you to track down the owner of the copyright. That may not be so easy to do. In addition, you would need to obtain clearances from any people in the photos to stave off any rights of privacy/publicity claims.
3. Thinking attribution is a cure-all. While it is helpful in using third party content to give attribution to the content owner, that does not mean you are in the clear. It may help in a fair use defense, depending on multiple other factors. Do not make the mistake, however, of thinking just because you have cited the website from which you scraped content that you have not violated a copyright.
4. Failing to protect the source code. Case law has made it clear that the source code of a website can be separately registered for copyright protection. Your source code is the heart of your website. Protect it and do not make the source code available for public use.
5. Not obtaining copyright protection for video/sound recordings. These elements frequently require separate copyright registration from the website since these materials can be easily scraped and may have their own independent worth. As you upload more recordings, you should remember to file new copyright registrations.
6. Failing to register. Without registration, one cannot apply to a US court for relief. Timely registration serves as prima facie evidence of ownership in a court case, shifting the burden to the defendant to show that it owned the work in dispute. In addition, it also affords certain advantages, such as statutory damages and/or attorneys fees. The Copyright Act’s statutory damages are per infringed work and may include treble damages, if the court feels there was sufficient intent or willful infringement.
7. Not owning your website content from the outset. Unless you hire a website developer and have an express contract that says his work product is either a work for hire or assigns the copyright to you, you will not own the copyright in your website. It is essential to create a written agreement with your developer to ensure that the copyright has been appropriately transferred from the developer to the website owner. Such a contract should also have an indemnification clause that protects the website owner by having the developer guarantee the originality of his work, including the source code.
8. Not framing an infringement claim properly. If you do need to file a copyright infringement claim, be aware that a proper claim should be pleaded with specificity as to which parts of the website are the subject of infringement.