If you thought monitoring copyright infringements in the print world was difficult, throw the World Wide Web into the mix and the task becomes daunting. The immediacy of the Web and the affordability of the technology make it much easier for a marketer to copy another company’s materials on the ‘Net than in print.
Consider what happened to Welcome Aboard!, a Costa Mesa, CA, catalog of yachting accessories and gifts. In early July, Dennis Lynaugh, president of the $1 million cataloger, conducted a random online search for Windglider, a portable windsurfer that’s one of the company’s best-selling products. The search produced a number of Websites, including a site selling boating products.
Lynaugh says he soon realized that 39 of this Website’s product shots and the accompanying copy were identical to those in Welcome Aboard!’s January 1998 print catalog. “I noticed it right away because I personally shot at least 30 of the 39 photos,” Lynaugh says. “Plus, one photo shows my wife as the model.” Calls to the Website in question went unanswered at press time.
At first, Lynaugh considered bringing legal action. But because he had not filed for an official copyright, Lynaugh says he instead called the company to demand that it pull the images and copy in question. The company complied. “A copyright lawsuit could realistically take months to resolve and thousands of dollars in legal fees,” Lynaugh says.
The alleged infringement also forced Welcome Aboard! to develop its own Website months before planned. Welcome Aboard! had intended to put up a Website by year-end, but now it will launch later this month. “In a way, what’s happened is flattering,” Lynaugh says. “But it’s too bad we have to be thrown into the Internet fray this way.”
What can you do? Copyright laws protect original works of authorship that are fixed in a tangible medium, such as a print catalog. Protection does not include ideas, procedures, systems or methods of operations, names, or titles. A copyright exists when a work is created; registration, although not mandatory, is available for a $20 filing fee.
But with thousands, if not millions, of Websites selling products to consumers, it’s difficult for companies to catch copyright infringements, let alone prosecute the violators.
Your best shot at catching online copyright infringements is to consistently monitor other sites. A random search for brand names, products, or other keywords associated with your catalog may call up sites that are violating copyrights. Welcome Aboard! says it now monitors the Website in question and other boating Websites on a weekly basis.
And intellectual property lawyers suggest that you file for copyright registration. “The second the catalog is in tangible form such as on paper, it’s considered a copyrighted work,” says Peter Nussbaum, a partner at Hackensack, NJ, law firm Friscia & Nussbaum. Internet-only marketers can scan their Web pages and submit them for copyright registration. “But until the company obtains registration, it can’t enforce it against infringers, meaning the company can’t recover any monetary damages.”
Attorney fees for help in filling out the complex paperwork for copyright registration start at roughly $400. Should you opt to file the paperwork yourself, you need pay only the $20 registration fee. And once you file the initial copyright paperwork, you don’t have to reregister for subsequent editions unless you make major changes. “If there is some material that is reused from month to month, it is considered preexisting material and therefore doesn’t need to be registered again,” Nussbaum says.
Even if you decide not to file for copyright registration, you should at least use strong “copyright language” in all of your promotional material. “Make sure you state this is your property and you will prosecute if violated,” says Jim Butler, a partner at Atlanta law firm Arnall, Golden & Gregory.
If you use freelancers for copy, design, photography, and Website development, you should also protect yourself with an intellectual property contract, Nussbaum says. If you hire an outside firm to develop a Website, the developer may end up the owner of the work, unless you’ve obtained a written agreement stating that all rights belong toyou. Joint ownership of a Website by the customer and the developer-a common compromise-raises other complexities with respect to future use and exploitation of site elements that are best avoided.
Should you detect a violation, you should enlist the aid of product vendors. “We work with most of the manufacturers in this small marketplace, and many of the products are exclusive to our catalog,” Lynaugh says. “When we told them what happened, they agreed to cease selling to the violator.”
You should also contact the offending Website’s Internet service provider (ISP). While ISPs are not required by law to monitor sites for violation, it’s in their best interest to stop or warn the violator. Once an ISP is aware of the violation, it can be held liable for copyright infringement.