Thursday, August 4, 2011

Things to Know about Copyright and your Website

Copyright protects the expression in tangible form of original works of authorship.  A website – like a brochure, an advertisement, a press kit, or a press release – is a valuable asset and marketing tool which merits protection.
  1. Create and use your own images. The best way to avoid infringement claims against your website is to create your own original images for display. If you are not creating your own images...

    1. Get permission before copying internet images. Copying images from the internet is controversial. If the owner of the image gives permission, you can use the image. Many times, however, the purported owner of the image is not the actual owner (i.e. the image was obtained falsely), which can lead to an infringement claim. The copying of images created by third parties without permission is infringement. See, Inc. v., Inc., 679 F. Supp. 2d 312 (E.D.N.Y. 2010) (where defendant used over 900 copyrighted images from Plaintiff's website).

    2. Follow the terms of the images’ license agreement. Taking images from purchased software (i.e. Microsoft Word Clip-Art) is not necessarily infringement. By purchasing the software, you have accepted the license agreement terms. It is imperative to review the license to find out how the images may be used. For example, sample language from the Microsoft Service Agreement states that Microsoft product users that have access to media images, clip art, and the like, “may copy and use the media elements in projects and documents.” They may not, however, “(i) sell, license, or distribute copies of the media elements by themselves or as a product if the primary value of the product is the media elements; (ii) grant your customers rights to further license or distribute the media elements; (iii) license or distribute for commercial purposes media elements that include the representation of identifiable individuals, governments, logos, trademarks, or emblems or use these types of images in ways that could imply an endorsement or association with your product, entity or activity; or (iv) create obscene works using the media elements.”  The use of licensed images from the internet may not be infringement, as long as you follow the terms of the license. See v. Engle, 10-CV-00588-MSK-MEH (D. Col. Feb. 18, 2011) (where the use of a copyrighted photo on a website without a license was a violation of the plaintiff’s copyright).

  2. If possible, use only original text. When preparing text for a webpage, the text should be original, written specifically by the creator. The use of another’s written work without permission is copyright infringement. See Cvent v. Eventbrite, Inc., 96 USPQ2d 1798 (E.D. Va. 2010) (where the defendant’s online directory information was “scraped”, or copied, from plaintiff’s website)

  3. Avoid making source code available for public use. The source code of a website can also be registered for copyright protection. The copying of registered website source code is an infringement. See Hermeris v. Brandenburg, 10-2531-JAR (D. Kan. Jan. 23, 2011) (where the defendant’s copying of content and source code of the plaintiff’s online document preparation business was copyright infringement).

  4. Video and/or sound recordings should be copyrighted separate from the website. If a website contains video and or sound recordings (such as background music), they should be separately copyrighted (apart from the website itself) as these materials could be easily lifted separately and may have their own independent worth.
  6. Web designers should operate under a work-for-hire contract. To determine whether a work is made for hire, one must first establish whether the work was made by an employee or an independent contractor. See Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). If the work is made by the employee, then the work is generally considered to be a work made for hire, and the employer retains control of the work. If the work is created by an independent contractor, then the work is only a work made for hire if (1) it falls within one of the nine enumerated categories of works in Section 101 of the Copyright Act, and (2) the parties specifically agree in a written document that the work is one made for hire. If these provisions are not met, then the work is not a work made for hire, and the independent contractor is considered the “author” of the work. It is therefore essential to create a written agreement with an independent website designer to ensure that the designer assigns all copyright ownership to the website owner. Companies should also be advised that if their website is created by an independent contractor, there should be indemnification clauses in the assignment to ensure that the work, including the source code, is original.

  7. Register, register, register. U.S. companies are required to obtain copyright registrations in order to bring an infringement action in the United States. In registering copyrights, website owners should identify the portions of the site that are being copyrighted. In addition, if a copyright owner files for registration within three months of the work’s publication, he is entitled to several remedies in a case of infringement potentially including attorney’s fees.

  8. If a copyright owner decides to file a complaint for copyright infringement... Broad language, such as “all texts, photographs, selection, arrangement and compilation”, would be insufficient against a copyright infringement claim. See Salt Optics v. Jand, SACV 10-0828 (C.D. Cal. Nov. 2010) (where specific indication of the infringed portions of a website were necessary to bring an infringement claim).

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