Should I Register the Copyright on My Website?
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.
Fight Content Thieves with a DMCA
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 Protect 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.
Copyright Infringment Lawsuits
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.
Founded in 1984, Jaburg & Wilk PC offers extensive experience, diversity in practice areas and the ability to think like a business owner. We are an Arizona mid-sized AV rated law firm, the highest rating that a law firm can receive. Our attorneys, paralegals, and other support staff meet our clients' diverse legal needs and provide exceptional service through our 21 Fundamentals which comprise The JW Way.