Yes, You CAN Copyright Your Website…Under These Conditions – by Harvey Randall, Esq.

Yes, You CAN Copyright Your Website…Under These Conditions – by Harvey Randall, Esq.

Perhaps you, like many BookLocker authors, have established a website on the Internet as an aid to promote your works. Are you aware that you can register your copyrightable website content with the United States Copyright Office?

Material posted on your personal or professional website must meet the Copyright Office’s definition of a website – “a webpage or set of interconnected web pages, including your homepage, located on the same computer or server … that you maintain as an author by using a uniform resource locator [a.k.a. your URL] leading to your distinct webpage.”

The copyrightable content on your website could include samples of your writings taken from your articles or books, reviews of your writings by others, and similar postings concerning your work, including your own original content designed to promote your work. In contrast, any of your website’s content that is posted on another website, or located on another server, is not considered part of your website for registration purposes.

Although your website may contain a database, the Copyright Office does not currently view posting of database materials as “eligible content” for the purposes of copyright registration.

Visitors to your website can access all the content you have posted by “browsing” or scrolling your website, but cannot access the content of a database in its entirety unless they search for specific data or content that you have included on your website using a “search function.” However, although your site may provide a search feature to assist users in locating particular information on the site, this feature does not create a database for the purposes of the Copyright Office’s review.

Another factor to consider when attempting to copyright material posted on your website is authorship. When you are the exclusive creator of the work, you are deemed to be the author of that work. If, however, there are “more than one of you” involved in creating the work, the Copyright Office views this a “joint authorship” and the work is considered a “joint work” for copyright purposes.

The Copyright Office cautions that:

For purposes of copyright registration, the owner of website content is either

(i) the author of the content or

ii) a copyright owner that owns all the exclusive rights in that content.

Further, advises the Copyright Office, “When completing an application to register website content, the owner of the content should be identified in the application as the ‘claimant.'”

Another element to consider when copyrighting a work: was the product the fruits an individual created in the course of his or her employment (i.e., was the work product the result your personal efforts or the efforts of an individual employed by you on a “work made for hire” basis)? On this point, “work made for hire” is viewed by the Copyright Office as “work prepared by an employee within the scope of his or her employment.” In such cases, you as the “employer,” own the employee’s work product for the purposes of copyrighting the work.

On the other hand, an individual not serving as your employee or an independent organization may be tasked with creating the website and/or its content. Such a person or entity is viewed by the Copyright Office as an “independent contractor” and the Copyright Office views any item created by an independent contractor as “authored and owned by that individual or entity” rather than the employing entity for the purposes of copyrighting the work product so created or produced.

Of course an independent contractor can transfer the ownership of its exclusive rights to copyrighting the work to another party, including the person or entity employing the independent contractor, by signing a written agreement to that effect but, without such a writing, there has been no transfer of ownership of the copyrightable work product insofar as the Copyright Office is concerned.

In the words of the Copyright Office:

“If an individual, company, or organization hires an independent contractor to design a website and/or create copyrightable content for the website, the hiring party may have a contractual or implied right to use the website and/or the content for the purpose for which it was intended. However, the hiring party does not own the copyright in that content and cannot be named as a claimant unless there was a valid transfer of ownership in the copyright from the independent contractor to the hiring party.”

The following example of the independent contractor’s relationship to or with the employer was prepared by the Copyright Office, and is posted on its Internet website:

“Wendy Genoa is a website designer who works as an independent contractor. Val Miller hired Wendy to create a website for his small business. Wendy created the copyrightable backgrounds, banners, and other graphics for the website, as well as the selection, coordination, and arrangement of the pages of the site. Val submits an application to register the website naming himself as the author and claimant.

“The deposit copies clearly indicate that Wendy contributed copyrightable authorship to the work and the application contains no transfer statement.

“The registration specialist will communicate with the applicant, because Wendy appears to be the author of this content and Val does not appear to be the proper claimant unless there was a valid transfer of ownership via a signed written agreement.”

If these elements haven’t created enough things for you (the party most interested in the website) to consider, what about websites that permit content created by visitors to the website to be posted on the site by the visitor? Typically, such a contribution is viewed as being owned by the visitor unless the visitor has transferred the ownership of the material posted on the website by signing a valid written transfer of ownership.

Another consideration: Do you plan to include or incorporate copyrighted or copyrightable material created by another party in your website? If so, subject to certain exceptions, such as: such use be qualified under the “fair use doctrine,” it is incumbent upon the user of such material to obtain the written permission of the copyright owner before posting the work on your Internet site or you may find yourself on the wrong end of infringement of copyright litigation.

What is the “fair use doctrine?” As described by the Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” It’s determining if the use of the copyrighted material being so used qualifies as being within the ambit of those “certain circumstance” that becomes the critical issue when using such copyrighted material.

Another consideration: You may attempt to copyright material that cannot be copyrighted. In such situations, the application to include such material will be rejected by the Copyright Office.

The Copyright Office explains that a registration for a claim in website content does not extend to any uncopyrightable material contained within a website, noting that the United States Copyright Office “will refuse to register website content that does not constitute copyrightable subject matter or content that lacks a sufficient amount of original authorship” and notes that uncopyrightable material includes, but is not limited to, the following:

“Ideas, such as plans for future websites;

“Functional design elements;

“Domain names and hypertext links;

“The layout, format, or ‘look and feel’ of a website; and

“Common, unoriginal material, such as names, icons, or familiar symbols.”

In any event, as the Copyright Office has stated, “The copyright law does not protect the overall look and feel of a website. It only protects the specific copyrightable expression found on a website on a given date.”

The Copyright Office has published, and has posted on the Internet, a 48 page Chapter 1000, A Compendium of Information Concerning Websites and Website Content, which was last revised on January 28, 2021.

The URL for Chapter 1000 is https://www.copyright.gov/comp3/chap1000/ch1000-websites.pdf.

Further, as a convenience for the reader, all of the entries in Chapter 1000’s Table of Contents are linked to the relevant text on the website addressing the topic of the entry.

Chapter 1000, comprehensive and well written though it is, is a classic example of the BIG print giveth/the little print taketh away. Read it very, very carefully.

Indeed, in this author’s opinion, Chapter 1000 and related works published by the Copyright Office concerning “copyright and the Internet” are not publications that a layperson should attempt to navigate without the assistance and guidance of a qualified copyright attorney.

If you are ready to protect your hard work by copyrighting your website, you can START HERE.

EDITOR’S NOTE: If you hire someone to design your website, I strongly recommend having them sign a work-for-hire agreement before money changes hands and before work begins. You can find a sample work-for-hire agreement RIGHT HERE.

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Harvey Randall formerly served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University of New York system and as Director of Research, Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. Randall maintains a law blog of the same name focusing on New York Public Personnel Law.

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