Companies spend a considerable amount of time exploring ways in which intellectual property laws can help protect and exploit their assets. Invariably, they look to trademark and patent laws to serve their needs, while copyrights remain an underutilized means for securing business assets. Copyright issues are especially relevant for companies with a great deal of online content, because these companies make significant investments in creating and maintaining valuable website materials for the public to view. Companies can use copyright registrations as a tool to protect their investments, as copyrightable information posted on the internet is at the tip of a potential infringer’s fingers. An infringing party may copy a company’s valuable online content, including designs, photos, text, images, sound, and video, with the click of a mouse. As such, companies should always consider whether obtaining copyright registrations for websites is worthwhile.
Most people know that books, music, artwork, and films are copyrightable because every now and then they hear about copyright cases in the news dealing with famous books, songs, or movies. In 2015 alone, courts decided several landmark copyright cases, including the Google Books case and the Robin Thicke “Blurred Lines” case. However, a company should be mindful that, even if it does not own rights to famous books or movies, it likely owns a substantial number of valuable copyrightable works in the form of its websites, computer programs, databases, company manuals, training materials, catalogs, and promotional and advertising materials.
Website content in particular may qualify as copyrightable in several ways depending upon the nature of the website. Generally, if a website is “published,” its registration will extend only to content that is “published” as of a particular date. That particular version must be “deposited” with, or copied and sent to, the Copyright Office. Thus, if a website is “published”, a company must regularly register any new or revised material that it wishes to protect. If, on the other hand, a company’s website is considered “unpublished,” protection will extend to all copyrightable material on the website, regardless of the date it was posted.
Notably, website publication must be carefully considered, as copyright laws do not explicitly determine when an online transmission is “published.” Determining whether a website is “published” is not as intuitive as it may sound, as posting and displaying content for the whole world to see does not necessarily constitute “publication” in itself under the copyright laws. Rather, for “publication” to occur, a company must expressly or impliedly authorize distribution of the materials to end users, who must be able to keep copies. For instance, if there are buttons on a website that invite users to download, save, or email materials, that could evidence an implied authorization for distribution and retention of copies. On the other hand, a statement prohibiting distribution and reproduction of materials, or the use of technological means to block distribution and reproduction, would evidence a lack of publication. Ultimately, it is up to the applicant to establish whether the website has been published by looking at such circumstances. If publication is determined, the accuracy of the publication date is critical, as it establishes the specific content to which the copyright registration and protection extends.
Finally, while an owner of an original work of authorship enjoys copyright protection rights as soon as the work is in a “fixed, tangible medium,” a copyright owner cannot legally enforce its rights without a copyright registration. Further, statutory damages from infringers are only available when a work is registered before the infringement occurs, or within three months of “publication,” depending upon the circumstances. Accordingly, filing a copyright registration for a website early and often (if published and frequently updated) gives a company the best chance of protecting its website from infringement and recovering any losses if it is infringed.
By Lindsie Everett, Suzanne K. Ketler & Terrence H. Link II of Roetzel