1. Own Your Own Content
As a threshold matter, you need to create all the content yourself or, if it is created by others, it must be done pursuant to a “work for hire” agreement. If not, the person writing the content or providing the graphic or photographs owns the content, not you or your company. As a general principle, you can’t protect content you don’t own and you expose yourself to liability down the road as well for infringement of the content of others. Along these same lines, if your website contains pictures of customers or models, you will need to be sure that each individual in the picture has executed a release that allows you to use the photograph for whatever purpose you deem necessary. Otherwise, you expose your company to a potential claim for using the image and likeness of another without his or her permission.
2. Register Your Copyrightable Content
The content of your website, both the text and the graphics, will primarily be protected through copyright law. Optimally, you should register your content with the U.S. Copyright Office before you publish it on your website. Having a registration will entitle you to the maximum penalties available should someone infringe your copyrights and you are forced to sue them. Even if you have not instituted a lawsuit against the infringer, it will improve your bargaining position in the event you are negotiating a resolution. However, registration is not strictly required and you have common law copyright protection from the moment the content was written down. So, at the bare minimum, you should have a copyright notice at the bottom of your web page, i.e., “© Your Company Name, 2012. All Rights are Expressly Reserved.”
3. Register Your Trademarks
In addition, you should register all words and phrases that you consider to be trademarks at the United States Patent and Trademark Office. For the uninitiated, trademarks are words or slogans that serve to identify your company as a source of goods or services. Just as with copyrights, registration is not strictly required because you do have common law trademark rights that spring to life when you use the mark in commerce. However, rather than rely on your common law rights, registration is a better idea in almost all cases because it improves your position in a lawsuit, gives you superior rights to the mark in all 50 states and, most importantly, can serve to head off problems in advance by serving as notice to others of your rights. If you have a registration, other potential users of your mark are far more likely to know of your existence and will choose a different mark. Clearing and registering your trademarks in advance is always cheaper than litigating or having to change your marks down the road, after an extensive investment of money and time has already been made.
4. Include Appropriate Disclaimers and Warning Statements
If you are providing information on your website, you will want to have appropriate disclaimers to ensure that others do not rely on the information that you provide to their (or your) detriment. In addition, warning others of your copyright and trademark rights can also serve to head off problems at the pass. Consult an attorney experienced in this area to review your content to make sure you have disclaimed what you should. But, at a minimum, your website should probably have something like the following:
“Disclaimer: The information on this website is for information and entertainment purposes only. YourCompanyName hereby disclaims any and all responsibility or liability with regard to the accuracy and completeness of the information on this web site including, but not limited to, direct, indirect and consequential damages.”
I also include a disclaimer relating to links to other content on my site: “I provide links to other websites but I cannot vouch for the truth or accuracy of those sites.”
Consider a warning like the following: “Warning – “’XXXX’ and ‘YYYY” are registered trademarks of Your Company Name. In addition, all information on this web site is protected by the Copyright Laws of the United States, 17 U.S.C. Section 101 et seq. Reproduction and distribution of the information on this web site without the prior written consent of Your Company Name is strictly prohibited and may subject the infringer to civil and criminal penalties.’
5. Have An Attorney Review Your Website Development/Hosting Agreements
Be sure your website development agreement provides that you own all the rights, including copyright and trademark rights, to your web site. Similarly, have an attorney review your web hosting agreement, if you are not hosting it yourself. Are you guaranteed minimum standards of performance, such as appropriately scheduled backups, site speed, timely response to inquiries, etc.?
Paying attention to these five areas will help you ensure that your website does what it’s supposed to do: promote you and your business and keep others from riding on your coattails, all without creating liability for you. Addressing these issues upfront can save lots of money and hassle down the road.