Protecting Your Website Content

August 2010

Nearly every business today has a website, and the content of your website may include valuable intellectual content. For example, you may have white papers, charts and graphs reflecting your research, photos of your products, and videos advertising your services. All of these things represent your intellectual property. The fact that you are making them publicly accessible on your website does not mean they are free to be copied and used by others. Similarly, the fact that you find something on someone else's website does not mean you can use it. Much of the website content that exists is protected by copyright laws.

In the United States, the content of your website may be registered with the U.S. Copyright Office. The benefits of a federal copyright registration are discussed here. Keep in mind that if you do not own the copyright to the content on your website, you must exclude that material from your copyright application. For example, if you hire a videographer to produce videos for you, you must have a written copyright assignment from that individual (or company) in order to include those videos in your application. Similarly, if you have paid a photographer to take photos that are on your website - even if those photos are of your own products or premises - you do not own the copyright to those photos in the absence of a written assignment.

If you do not own the content on your website, then you usually cannot prevent others from copying that material. Many of our clients purchase "stock" photos (these photos are offered on numerous sites and may be royalty-free or require payment), but when you purchase these photos, you are purchasing a limited right to use them - you are not purchasing the copyright to those photos. This means that they must be excluded from any copyright application for your website content, and it also means that in most cases (unless the license was exclusive), you do not have the right to prevent others from using them.

The reason copyright ownership matters - and we advise our clients to obtain written copyright assignments for all original content developed specifically for them - is because competitors may take your photos, videos, white papers, etc. and claim to have authored them or use them to divert business from you. It is not uncommon for some unscrupulous sites (often foreign) to steal product photos from a client site, advertise goods under the client's name, and then import those goods into the United States without the client's trademark appearing on the products. In these situations, the foreign company is attracting customers who believe they are buying the client's goods and then delivering either a substitute (oftentimes inferior) product or the client's product with the trademark removed. Both of these scenarios are problematic, and they both present challenges in terms of trademark infringement because the goods are not shipped into the United States bearing the mark. In those situations, another alternative is to enforce the client's copyright in the product photo that was used to advertise the goods. If the client did not obtain a copyright assignment from the photographer, or if the photo (or website content) is not registered with the U.S. Copyright Office, then there is little that can be done in this situation as a practical matter.

In connection with copyright assignments, the contractor (photographer, videographer, writer, etc.) should be required not to use subcontractors unless the client has specifically approved the use of subcontractors and has obtained separate written copyright assignments from them. This is because a copyright assignment with a general contractor does not contractually bind its subcontractors. Content creators (particularly those involved with video productions) often subcontract certain aspects of their work, and it is important to remind them - preferably in writing - that they are not permitted to subcontract without your permission.

There are also technological ways to prevent others from copying the content on your website, but I am told by Mike Marshall at Zee Creative, Inc. that none of these methods is hack-proof. What Mike advises is that when it comes to photos, you should include a watermark in the image (not as an overlay) and utilize smaller images. We advise our clients to work with competent web firms like Zee Creative to develop ways to protect their website content from a technological standpoint. In the interest of full disclosure, Zee Creative is one of our clients.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.