Do You Own – And Are You Protecting – Your Website?

by Lisa Dunner on January 7, 2011

Copyright sign made of jigsaw puzzle pieces separated

Like many businesses, you have probably invested a fair amount of money into your website, both to have it developed and maintained. Your website is, after all, one of your best marketing tools, so why not spend your time and resources on it?

What you may not know, however, is that you do not own your website, both the look and feel of it and the content, if you had it developed by an independent contractor without a proper written agreement and if you did not obtain permission to use any content on the site not created by you or one of your employees.

What Do You Own?

If you hired an outside vendor to develop, design and/or contribute content to your website, you should have a written agreement that assigns all rights and ownership in the vendor’s contributions, including the website as a whole, to your business.

Without a written agreement, the vendor may have legitimate ownership rights in your website, because under copyright law and the “work for hire” doctrine, an independent contractor will own what she creates on commission without a written agreement to the contrary.

If one of your employees created the website during the course of her employment, then you are likely covered under your employment agreement.

What About the Content on the Site?

Your website should be comprised of original works of authorship created by you or your employees, or of third-party materials which you have permission to use. Always seek permission from third parties for text, graphics, video content, and other content you wish to use, unless you are certain that the content is in the public domain.

You can purchase a license for graphics and content from many websites, but if the material you wish to use is not offered for sale and you cannot find the owner, you should review the legal policies on the site, if any, to see if there are any restrictions for use of content or graphics on that site.

How Do You Assert Ownership in Your Website?

You should include a proper copyright notice (e.g. “© Company Name 2011”) at the bottom of each page of your website. The year refers to the date of first “publication” (which, for a website, would mean when the site first went live to the public), and it can be updated by hyphenating subsequent years or publications (e.g. “© Company Name 2009-2011”).

A copyright notice is not required by law, but there are important benefits to using one, including: informing the public that the work is protected by copyright, identifying the copyright owner and the year of first publication, and preventing a party from claiming an “innocent infringement” defense that could reduce the damages that would normally be available in a copyright infringement lawsuit.

Should You Seek Formal Registration with the Copyright Office?

It is not required that you register your website with the U.S. Copyright Office. However, if you do, you will be able to recover the full range of damages available in a copyright infringement lawsuit. Without a certificate of registration, you cannot sue an infringer. Copyright registration is relatively inexpensive, so it makes a lot of sense to register now and protect your site before you encounter any trouble.

What About Having Legal Policies on Your Site?

You should definitely define the relationship between your business’s website and the user of your site. A “Terms of Use” and “Privacy Policy” will do exactly that.

A “Terms of Use” policy should include provisions describing, among other things, your ownership of the site, intellectual property rights, disclaimer of warranties, and limitation of liability. A “Privacy Policy” is necessary to outline whether or not your website collects and/or stores a user’s personally identifiable information (e.g., name, contact information, email address, etc…).  This policy also should inform the user what rights she has to opt in or out of your collection procedures.

Limiting Liability for User’s Acts of Copyright Infringement

Finally, and importantly, if your website allows users to post information, then you need to guard against potential acts of infringement by designating an agent to receive notifications of infringement by anyone that complains.

You must also provide your agent’s contact information to the Copyright Office (and post the contact information in your “Terms of Use” policy). If you do this, you will be protected by statute – specifically by the Digital Millennium Copyright (“DMCA”) which limits the liability of website owners who store, on their sites, user-submitted content that is found to infringe another’s copyrighted material. Taking these steps will limit your liability should an infringement ensue.

In Conclusion

Adhering to these steps will not alleviate all legal concerns pertaining to your website, but it will provide some peace of mind which will allow you to focus your attention on running your business. If you are unsure as to whether you own your website or whether or not you are legally using the content posted on your site, you should seek counsel to be sure that you are not violating rights of others.

Image: Horia Varlan via Flickr, Creative Commons

Lisa Dunner is managing partner of Dunner Law PLLC in Washington, D.C. She has extensive experience in counseling, protection and enforcement of intellectual property and unfair competition rights. Lisa’s expertise includes, among other things, Internet-related issues, trademark and copyright infringement, source code, keyword ads, domain disputes, framing, linking and social media issues. She regularly conducts intellectual property audits for her clients; manages and enforces international trademark and copyright portfolios; and represents numerous clients in cases before the Trademark Trial and Appeal Board and in U.S. state and federal courts. Lisa also negotiates IP and technology-related agreements. You can find Dunner Law on Facebook or Twitter.

DISCLAIMER: The information posted in this blog is provided for informational purposes. Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. The information presented here is not to be construed as legal advice. Women Grow Business recommends that you consult an attorney if you want professional assurance that the information posted, and your interpretation of it, is appropriate to your particular business.

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