Web Sites: Profits and Pitfalls

Because of the ubiquity of the internet, websites have become an increasingly important marketing tool for any businessperson. The website can advise a potential customer of the goods or services offered and even serve as the means for the customer to buy those goods and services. But the digital nature of the internet facilitates copying and unauthorized use by competitors.

Content on a website once it is fixed into tangible form is endowed with copyright protection. The author or copyright claimant, if the authorship constitutes a work-for-hire because the author was employed by another, retains the sole right to publish the content of the website, make copies or it, or create derivative works from it. But certain steps need to be taken to secure full protection.

First, the website should contain a copyright notice that contains the word “Copyright” or the symbol © to put the world on notice that a copyright is claimed, identifies the author or claimant so the world knows who owns the copyright, and states the date or dates of initial publication. Typically the copyright notice will appear on the bottom of the home page of the website. Absent that notice, an infringer can claim it was unaware that the work was protected and that the author or copyright claimant was claiming copyright protection. The copyright holder may lose the ability to recover greater damages in a lawsuit.

Second the copyright claimant should strongly consider registering the work with the United States Copyright Office. Without registration, suit against an infringer cannot be brought. Registration is necessary to request attorneys’ fees. Registering within three months of the initial publication of the website (displaying it on the internet usually) and before the infringement is a prerequisite to obtain statutory damages. Presentation of the registration certificate in court establishes the registrant’s ownership of the copyrighted work; the burden then shifts to the infringer to prove a lack of ownership.

To obtain copyright registration, an application for registration needs to be filed with the United States Copyright Office. These days an on-line application is the best way to proceed. A deposit of the work to be registered must accompany the registration. A digital copy can be uploaded and will satisfy the requirement for a deposit, or a paper copy can be mailed to the office using a form that can be printed once the on-line application is completed.

Armed with a copyright registration, we have successfully eliminated unauthorized copies of a client’s website content from a competitor’s website. We can assist with the registration process.

Another form of website hijacking our clients have experienced is disputes over the ownership of website content with the website developer. Many times when an update is needed the developer is nowhere to be found or claims it owns the website content and uses that claim to extort a more favorable price to create the update.

The solution – negotiate and execute a written contract with the developer before any work is done. The contract in addition to outlining the scope of work and timeframes for its completion should also provide that the website’s owner owns its content. The contract should contain warranties that no part of the content infringes on the work of another and has been independently authored or obtained via legally enforceable and legitimate licenses or assignments.

Many think that if an item appears on the internet it is within the public domain and can be freely used. Not so. Just as you can use copyright protection to safeguard the content of your website from theft by others, authors of content can use the protection of copyright to extort money from a website owner who innocently thought that they were entitled to use a stock photograph because it was on one, or more, sites and was free game. Developing a website should include making sure that only material that the owner created or that was obtained by a documented license or assignment is included in the website.

Carefully constructed and appropriately protected, a website can be a valuable marketing tool. We can help prepare the contract with the website developer, register the website once created, and stop unauthorized copying once it appears.

Written by Attorney David B. Goldstein,dbg@hgplaw.com.

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