Copyright and Trademark Perils of Websites

Copyright and Trademark Perils of Websites

One of the first questions someone might have when they are building a website is: Am I violating someone else’s copyrights or trademarks when I publish the website content? If it isn’t one of the first things you are thinking about, it should be. You can infringe someone else’s intellectual property rights without doing so knowingly.

Copyright infringement is the act of violating someone else’s rights covered by the United States Copyright Act. There are six major categories of rights that a copyright owner has. These rights are the rights to

(1) reproduce the copyrighted work;

(2) adapt the work (also known as making a derivative);

(3) distribute the work to the public;

(4) perform the work (such as a literary, musical, dramatic, motion picture or similar work);

(5) display the work (such as literary, pictorial, graphic, sculptural or similar works); and

(6) broadcast the work (such as radio or load-speaker transmissions of music).

Each of these rights could be violated if you use the copyrighted work or an adaptation of that work on your website or if you post in on a third party website.

The easiest way to infringe someone else’s rights is to simply cut-and-paste content (such as text or images) or codes from another website without permission. This could spell disaster. If you are not sure whether you have the rights to post someone else’s content or whether that content is copyright protected, you need to consult an attorney before posting it.

Trademark infringement is the act of using a word, phrase, logo or sound that is confusingly similar to an existing trademark and for similar goods or services. To infringe a trademark, there doesn’t have to be actual evidence that customers were confused.

If you are going to refer to a trademark you do not own, you must be very careful and only do so in an appropriate manner. You must make sure that there is no way anyone would confuse your business as the same or related to another business. This goes to the heart of trademark infringement.

If you are using the trademark to refer to products you are selling through a store (online or brick-and-mortar), you can also use that trademark to identify or describe the items you are selling. This is called nominative fair use. You can only use the trademark if it is reasonably required to identify or describe the goods or services you are selling. If you can reasonably identify the goods or services without using the trademark, you need to avoid using the trademark.

This is especially the case with logos. If you can identify the goods and services without using the logo (i.e., spelling out the word rather than including the stylized logo – think of Dell’s logo with the offset “E”), you must only use the word mark and not the logo. This is almost always the case.

The best way to protect yourself from an infringement lawsuit is to obtain the written permission from the owner of the copyright or trademark before publishing that content on the website. If you are concerned about infringing a copyright or trademark, you should obtain the advice of a competent intellectual property lawyer.