My last Who Owns Your Website post was very well received. The jist of that post was that unless your website was created by your employee in the course of employment OR you obtained a written assignment of all rights in the website, you probably do not own your website. That post covered those parts of your website that you honestly thought you owned, but as it turns out, you do not. This post covers things you probably knew you did not own, but thought you could use without getting caught.
Here are the excuses I hear when people get sued for infringing someone else’s website design. I thought it was okay because:
They Gave Me an Inch
You paid a designer for work on a website. Now you want to replicate that design across several websites, and possibly even license it to others. Although you paid the designer for the work, you do not own the work. You merely have an implied license to use the work for its intended purpose. Whether that “purpose” includes use in other projects and/or sublicensing is a question for a judge or jury to decide. To avoid getting to that point, obtain an assignment of copyright up front, or at least detail in writing exactly what you can and cannot do with the design.
BadgerMan69 Said it Was Okay
Often an employee or a message board commenter will attest to the availability of design material for public consumption. “Fair use”, “public domain” and/or “I am the author”, are all common justifications. The problem is that the person authorizing the use typically has little or no knowledge about intellectual property laws. While you might possibly use this “authorization” to convince some judge you were an innocent infringer, this defense merely reduces the punitive damages and other side’s attorney fees you might have to pay. Even an innocent infringer still has to pay compensatory damages and their own attorney fees.
All My Friends Jumped Off the Bridge . . .
A lot of website infringements stem from the perception that since everyone else is doing it, it must be okay. This can easily get out of hand. Say a website owner licenses a particular design. An unscrupulous competitor then sees the design and steals it for his or her own website. A third ethical, but non-intellectual property savvy, competitor sees the other two designs and assumes the design is fair game. The process continues until everyone but the original licensee is in federal court defending themselves against claims of copyright infringement. BTW/if you find yourself in this position, resist the strong temptation to explain to the judge that you only broke the law because everyone else was doing it too.
I changed 25% of the Design
I have no idea from where these urban legends originate. There is no law which allows you to copy something if you change “x” percent of the design. If it is substantially similar, you better rethink using it. This can be a big concern in the situation where the designer based the design on a pre-existing copyrighted work, merely creating a “derivative” from the original. The designer truly believes he or she owns all rights in the new work when they subsequently license the work to you. To avoid this problem, stick with seasoned designers, more likely to know what they can and cannot do with other people’s work.
It Did Not Have a Copyright Notice
In the past, if you published a work without proper copyright notice, the work went into the public domain. No longer. With the advent of the Internet, people are constantly stealing other people’s works and posting them online without proper copyright notice. The absence of a copyright notice merely provides you the opportunity to throw yourself on the mercy of the court and claim innocent infringement. You still have to stop using the work and you still have to pay stiff damages and your attorneys, you just might be able to avoid paying punitive for punitive damages and their attorneys.
I am Not Making Any Money From It/Giving the Author Free Publicity
I believe this line of thinking originates with a misunderstanding of Fair Use. While monetary gain on your part and loss of income on their part are indeed factors to be considered in rendering a determination of whether a use is indeed “fair use”, the rules are much more complex and their application mercurial. Remove “fair use” from your mindset; act like it does not exist. If you absolutely need to use something in a manner you believe is fair use, obtain a written opinion from a copyright attorney first. Even if the attorney determines the use is not allowed, he or she might be able to suggest legal alternatives.
Now, go off and infringe no more.
Oh, I almost forgot about the Chinese. Wu Ying of Woogle’s Blawg has translated my Who Owns Your Website post into Chinese. You can check out the translation here. Personally, I do not think I come across nearly as