by Maria Crimi Speth
In today's global market place, virtually every business has a
website, and many of those sites are content-rich. Websites are
often filled with original writings and pictures. Much of that
original content is marketing, while other content consists of
informative articles, tips and guides to grab and keep the
attention of visitors to the site. A great deal of time and effort
is spent creating a content-rich website that will position your
business as a leader in the market place.
The problem that too often arises is that your competitor is
often interested in the same result without the same effort. I get
calls almost weekly from existing and potential clients complaining
that some or all of their web content has been swiped by a
competitor's website. On more than one occasion the copying was so
blatant that my client's name or telephone number could be found in
the contact information or in the terms and conditions.
Sometimes the infringer is simply ignorant of the copyright laws
and is under the mistaken belief that if content is on the
internet, it is in the public domain. In other cases, the infringer
is fully aware that his conduct is unlawful but is willing to take
the risk because he believes the risks are minimal. Either way,
rampant copyright infringement on the internet raises the question
of what steps you can and should take to protect yourself.
Fortunately, the Digital Millennium Copyright Act ("DMCA")
provides a procedure for obtaining removal of infringing content
without the necessity of filing a lawsuit. Under the DMCA, we send
notices to the internet service provider of the website that
usually result in the ISP taking down the infringing website.
DMCA notices are not always successful and having the infringing
content removed is not always the only remedy our clients seek. In
case the DMCA procedure is unsuccessful, or if you may seek to
recover damages for the infringement, you should consider the
importance of registering the copyright on your website
content.
Copyrights automatically attach to writings, graphics, and
photographs that are fixed in a tangible form. Thus, even without
taking any affirmative steps, you have copyrights over the content
that you or your employees create for your website. (Be careful --
absent a written agreement you do not own content created by an
independent contractor).
Copyrights can be registered with the United States copyright
office. There is no state level registration, as the federal
government has sole jurisdiction over copyright issues. Federal law
preempts (supersedes) state laws regarding copyrights.
Although there is no requirement to register a copyright, there
are several benefits of registration. An important benefit of
registration is that in order to file a lawsuit against someone for
copyright infringement, the work at issue must be registered.
Copyright registration costs $35 for electronically filed
registrations, but the process can take between three and seven
months. If you do not have a registration when you learn that a
third party is infringing your copyright, you must wait until you
receive your registration before you can file a lawsuit. There is a
process for expediting a copyright registration. The Copyright
office calls it "special handling" and charges an extra $760 to get
the registration back to you in approximately one week. Thus,
absent a registration, you will have the choice between a
substantial delay in filing a lawsuit or paying for expedited
handling.
An even more important benefit of registration is its effect on
recoverable damages. If you register your copyright within three
months of publication or before an infringement occurs, you can
recover your attorney fees from the infringer and "statutory"
damages (a set amount provided for in the statutes). Statutory
damages can be as much as $150,000 for willful infringement.
In a copyright infringement lawsuit, you can always seek what is
known as injunctive relief - an order from the Court that the
infringer must stop using the infringing content. You can also be
awarded your actual damages. It is often difficult, or impossible
to prove damages when someone copies content from your website.
Also, the actual damages are often dwarfed by the costs and
attorney fees involved in filing a lawsuit. If you did not register
your copyright before the infringement, you can not recover your
attorney fees expended in the copyright infringement lawsuit.
Although copyright registration is inexpensive and beneficial, a
common excuse for not registering the copyright on a website is
that the website is updated often. To properly protect your
website, you should not only register the copyright, you should
keep the registration up to date. When new content is added to the
website after the registration is filed, that new content is not
automatically added to the copyright registration. Rather, a new
registration must be filed which indicates that it covers the new
materials.
If you have spent significant time and effort creating a website
that includes substantial content, then you should also spend the
additional time and money to register the copyright on your
website's content. For more information on registering copyrights,
visit the United States Copyright Office at copyright.gov. If your
website content has been copied, contact us for help in getting the
infringing content removed from the Internet - even if you haven't
yet registered your copyright.