Most web designers are aware that protection for their work may be available under copyright law, provisions of the Digital Millenium Act, and even patents in some cases. However, the intellectual property issues encountered by web designers extend beyond offensive protection of their rights into defensive protection against the rights of others.
Website material provided by clients may contain photos and graphic images, or text content that has been impermissibly copied from other sources (such as the internet). People mistakenly believe that if it is on the internet, it is in the public domain and they are free to use it for their own purposes. Sometimes materials have been used at a business for years and the source of the content is long-since forgotten and currently unknown. Where did the former employee get the photos? Who wrote the text? Were parts extracted or copied from other sources?
Another common situation involves a website retailer who is distributing and selling the products of a third party. They mistakenly believe that they have full rights to use the trade name, product names and product images of the products they are selling.
Independent web retailers and small businesses may use product descriptions, extracts from the manufacturer’s trade dress and sales propaganda (packaging, specifications, instructions, product description) to advertise a product. They believe they are accurately giving the consumer all of the pertinent information without realizing the copyright and trademark infringement issues lurking in the background.
Although originally created, some independent web retailers and small businesses may use brand names and slogans that have not been searched for potential trademark infringement issues. It is often hard for people to believe that someone else, somewhere in the world, had the same idea as what they created.
Website designers may risk being named as a defendant in trademark and copyright infringement actions. These risks can be carefully allocated in service contracts to minimize the risks and to provide for indemnification of any losses (legal fees, settlement costs and damages). Our office can assist web design providers with service contracts that deal with these important issues, as well as copyright and/or patent protection of their work product.