What is a copyright? And what does it entail?
Generally, a copyright is a right of ownership over an original work of authorship, including “literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works (Black’s Law Dictionary, 11th ed., 2019).” However, copyrights do not give an author the right to protect “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”
When the Copyright Act was written and enacted in 1976, the statute did not recognize websites as a type of copyrightable subject matter. Over the decades, as expression over the internet became common, the question of whether an author can copyright a website has been asked. Before answering this question, (1) reasons for obtaining a copyright and (2) how to obtain a copyright registration are addressed.
Why obtain a copyright?
Generally, the benefits of obtaining a copyright outweigh the few costs associated with it, namely time and money. While an author gets common law copyright protection over an original work “the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of machine or device,” there are benefits to registering a copyright.
Obtaining a copyright further solidifies the author’s ownership of the original material by establishing a record of ownership. That record of ownership allows the author to enforce an infringement suit against an infringer because the owner of a registered work may potentially win statutory damages, attorney’s fees, and costs if the work is registered within 3 months of publication or the infringement occurs after the work is registered. Establishing a record of ownership early is also advantageous because if registration occurs within five years of publication, that registration is considered strong evidence of a valid copyright in a court of law. In short, for a small cost, the author obtains long-term benefits by registering for a copyright.
How to obtain a copyright?
The mechanics of obtaining a copyright are fairly straightforward: an author may file for a copyright registration when the work is published. A work is considered published when copies of the work are distributed to the public through a sale, rental, lease, public performance, or public display.
The copyright application is filed with the Copyright Office. The application contains: (1) a completed application form, (2) a filing fee, and (3) a nonreturnable deposit, which is a copy or copies of work for which a registration is being sought (i.e. “depositing” the material with the Copyright Office). The examination period for an application depends on the subject matter being copyrighted. For assistance with copyright registration, consider consulting an intellectual property attorney at TraskBritt.
Copyrighting a website?
A creator or author cannot copyright a website per se but only original content or a collection of original content on the website. If the creator contracted out work such as graphic design, the author cannot copyright those designs as his or her own unless the contract for the work and the work itself satisfy the legal requirements to be a work made for hire.
An intellectual property attorney should be consulted to determine whether a work meets the work for hire requirements as the determination can “be complicated and has serious consequences for both the individual who creates a work and the hiring party.” A webpage owner or author can also share other authors’ works by streaming that material, such as images from a newspaper, INSTAGRAM®, or other sources, with the appropriate permissions.
Aspects of a website that are not copyrightable include (but are not limited to): (1) ideas or plans for future websites, (2) functional design elements, (3) domain names or URLs, (4) layout, format, or “feel” of a webpage, and (5) unoriginal material such as names, icons, or familiar symbols.
Examples of creations on a website that may be copyrightable subject matter may be a recorded song that the author has put on his or her page. Another example is an essay or other written creative work. In some cases, the website as a whole may be registered “as a compilation or a collective work if there is a sufficient amount of creative expression in the selection, coordination, or arrangement of the content appearing on the individual web pages or the website as a whole.”
After registering a copyright, you may want to frequently check other websites or publications that may potentially infringe upon your own copyright. If you think someone may be infringing upon your copyright, consider consulting a copyright attorney at TraskBritt.
Deciding the copyrightable content of your website and possible infringement of others’ copyrights are thoughts to seriously consider when deciding if you want more than common law copyright protection. The IP attorneys at TraskBritt may be able to assist you in this process and other areas of intellectual property.
Article written by Victoria Cheng, Ph.D.