Is Your Original Written Content Protected from Theft?
What You Need To Know About CopyRight
Jesse Bifulco, Attorney, Camden Maine
Today, the majority of small businesses have their own websites. If you have included original written content such as blog posts, articles, or FAQs on your website as part of your efforts to draw people to your site and engage with new and existing customers, this is valuable intellectual property you should take steps to protect.
Register your work with the U.S. Copyright Office.
Although your written content is under copyright protection from the moment it is created and can be perceived directly or using a device such as a computer or mobile phone, you cannot bring a lawsuit for copyright infringement, i.e., theft or unauthorized use, unless you have registered your work with the U.S. Copyright Office. Registration also makes it easier for you to be successful in a lawsuit against an infringer. If you register your work within five years after it is published, the copyright and the facts contained in the certificate of registration the Copyright Office places in the public record will be presumed to be valid unless the person you are suing for infringement can provide evidence refuting them.
If you register your work within three months after you publish it or before an infringement of your work occurs, you will not have to prove the actual damages you have suffered as a result of the infringement in a lawsuit against the infringer. Rather, you will be able to recover an amount set by the federal copyright law (currently $750 to $30,000 per infringement, depending upon the court’s discretion) as well as costs incurred as a result of the lawsuit, including attorneys’ fees.
Damages may be difficult, if not impossible, to prove. For example, it is nearly impossible to show how many customers purchased the infringer’s product instead of yours because of the infringement. Thus, the ability to obtain the damages set by statute is crucial to ensuring you are compensated if someone uses your work without your permission. This is an important deterrent to those who may steal your work, as you will be entitled to the statutory amount every time someone views the infringer’s website—which can add up quickly. It also serves as leverage if you request that your content be removed from the infringing website rather than immediately filing a lawsuit.
Send a takedown notice.
The Digital Millennium Copyright Act allows the owner of a copyright to send a notice not only to the website owner, but also to the web provider that hosts a website that has used a copyrighted work without the owner’s permission, requesting them to remove the work from the website. To be valid, the notice must contain the specific information required by the law. If the website owner or web provider does not comply with the takedown notice, they may be subject to statutory damages and attorneys’ fees.
What about works created by employees?
When you register a work with the U.S. Copyright Office, you must identify the person who owns the copyright. Usually, the author is the person who actually created the work. However, if you hire an employee who writes content for your website as part of the employee’s regular duties, you will be considered to be both the author and the copyright owner under copyright law. The employee has no right to use the work without your permission.
What about works created by independent contractors?
In contrast to employees, the work of independent contractors does not automatically become the property of the person or business that hired them to create it. Because they are independent contractors, they will retain ownership rights in the works they create unless there is an express written agreement between the business and the independent contractor it hired to create the work. The agreement must state that the work the contractor was hired to create is considered a “work made for hire,” and the agreement must be signed by the company and the independent contractor. Otherwise, even if the company pays for the work, the company’s right to use it may be limited because the independent contractor is legally considered the owner of the copyright.
We Can Help
If you are concerned that your business’s original written content may be vulnerable to unauthorized use, we can help you take steps to ensure that this valuable intellectual property is protected. We can help you register your works with the U.S. Copyright Office, send a takedown notice, draft a “work made for hire” agreement, or provide guidance about any of your other intellectual property concerns. Please call Penbay Estate Planning Law Center today to schedule an appointment.
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