Website Copyright Concerns

September 09, 2013, 03:03 PM

A company putting up an Internet website will typically put a notice at the foot of at least the home page indicating that it is the owner of the copyright for the website. Too often this is the only consideration given to copyright law as the website is created and put into use. What is not taken into consideration is that the copyright notice, in and of itself, does little to secure or protect the legal rights the website owner wants to have in the content of its website; let alone to guard against the possibility that something on the website might lead to a copyright infringement claim against the website owner. The copyright-related questions anyone creating a website should ask themselves, and any web design company they engage to help with the project, include:

  • Has everything possible been done to vest in the website owner copyright ownership for all graphic, alphanumeric and other content of the website? Under copyright law some of these things can be characterized as works made for hire for the website owner, but it is always best to obtain written acknowledgement of that, coupled with an explicit assignment of the copyrights in all the content material from its creator(s). If a web design company is involved in creating the website content, this needs to be attended to in the contract with that party; and if the contractor uses freelance graphic designers, writers or others to create the content, written assignments of their copyrights should also be obtained.
  • Has any material been included in the website content that could give rise to a third party claim of copyright infringement? This most often occurs if a stock image or some other material is taken off of the Internet and incorporated into the website, on the assumption that it is in the public domain. There are companies that have built businesses on obtaining ownership of copyrights, or the rights to enforce copyrights, in photographs and other graphic images, scouring the Internet for website uses of the images, and demanding exorbitant payments from website owners who have innocently allowed the images to be used on their websites. Lack of knowledge as to the ownership of the copyrights in such materials is not a defense to an infringement claim, and these situations usually result in some payment to the copyright owner or the company enforcing its rights.
  • Is it necessary to register the copyright for your website? While registration of a copyright with the U.S. Copyright Office is an essential prerequisite to the filing of a lawsuit for copyright infringement, the copyright registration can be done at any time. This aspect of copyright law, coupled with the fact that website content changes frequently, makes letting filing of a copyright registration on website content wait until an infringement concern arises a viable alternative to early registration. While certain litigation advantages are sacrificed by this approach, it is the course more frequently taken than early registration of website copyrights.

In any case where a web design company or other third party is engaged to create a website, the starting point for addressing these concerns will be the website owners contract with them. Input on that from someone knowledgeable about copyright law is always a good idea. –Robert E. Smartschan