Copyrighting Your Web Content: Worth the expense?

Not too long ago we posted a short piece on whether or not you should hide or otherwise restrict the content on your web site. That post looked at the issue mostly from the angle of concerns about protecting the investment a business makes in generating original content. We explained that any investment made in original site content is reduced to a value of zero if that content is not used appropriately to generate traffic and new business.

We’ve had a handful of questions and discussions on this idea as it relates to copyright protection, and that’s what we’ll cover today.

Here are the basics, then we’ll look at some of the not-so-basic.

As soon as you create a work, you are the copyright holder. That’s right: according to the law, as soon as you create something that can be copyrighted, you own it. You don’t even have to add the copyright symbol ( © ).

That’s simple, and that’s probably as much as we can discuss copyright and still refer to it as “simple.”

By publishing language about your copyright in a work, you’re going a step further. In that case, you’re really doing two things. First, you’re asserting that, yes, you do in fact own this work. Second, you’re putting others on notice that if they copy your work there will be consequences. Many sources of copyrighted material aren’t particularly concerned about direct financial profit on their work, but they do want proper credit for it. That’s why you’ll so often see language to the effect of “Not to be used without the express written consent of the author” or “Unauthorized reproduction prohibited.” This is the approach we recommend to most clients: they should include a copyright warning, but not necessarily discourage re-use. Having your material circulate can be useful, as long as it references back to you as the original source. If you don’t immediately see the value in that, think of it this way: when others use your material, it shows that you are a source of expertise. They aren’t creating their own work, instead they’re relying on you and indicating that your knowledge of the topic is superior to their own. It’s hard to see the downside to that.

Let’s move a step further, into additional complications. What are your rights when you assert copyright, for instance, and then a work is “stolen” (we’ll say “infringed” from here on)? The answer is that while you legally own the copyrighted work, you have no power at that point to file a claim of infringement. In US copyright law, you’ve got to actually register a work before a court will hear an infringement claim. No registration, no claim.

Claims can be made after the fact, however. Which means that if you didn’t bother to register something important and then find out it’s been infringed, you can still register and then make a claim (some rulings have also held that the registration has to be complete, which currently takes about seven months according to most accounts). The bigger issue in a case like this, however, is that the value of the claim will be subject to important time limits. How exactly does that work?

In summary, if you have registered in advance of publication or within three months after, you can collect both the court judgement (assuming you win) and attorney’s fees. After that early window, you can only collect the judgement (not attorney fees). That’s a critically important difference because most copyright issues involve fairly low dollar amounts, which will be dwarfed by the legal fees required for the case.

That’s part of why so many works assert copyright but aren’t ever registered: even if they’re infringed, the value involved doesn’t justify the expense. This is even true of most works which generate revenue. Consider an informational pamphlet produced for a law firm on the basics of a wrongful death claim. Let’s say it required about $1,000 to research and write, another $1,000 for layout and design work, and is claimed by the firm to have a retail value of $12 per copy. A competitor infringed it and their copy has been accessed 2,000 times in the past year. At an extremely reasonable rate of $250 per hour, attorney fees would quickly overshadow that infringed value. An attorney working on an agreement to receive a percentage of any damage award would probably not even be interested in a case that small.

To add a wrinkle to this, if a copyright holder registers a work more than five years after it was created, a court does not have to recognize the registration. They can choose to, but they can also make the owner prove that their copyright is meaningful before the case proceeds.

The issue of value which we raised above is very important. Copyright can get expensive. The most simple application currently runs around $55, and it only goes up from there. If you need expedited processing or certain other services, a single application can quickly approach or even exceed $1,000—and that’s for a single document. Depending on how you approach the registration, copyright on a single website can mean that you have to register each article separately, and you can imagine how quickly this adds up (with care and planning, you might be able to register your website as a compilation, which simplifies the process and the fees). Copyright becomes a business risk decision. What’s the cost versus the benefit? What is the potential loss of revenue compared to the cost in time and money to register and regularly update copyright? We’ve said it before—and there are exceptions—but in general we don’t feel there’s any additional value to copyright registration over the value of simply asserting copyright on your material.

Before we wrap up, here’s one more issue to be aware of: Do you even hold copyright in your web content?

That seems an odd question, but here’s the thing: under US copyright regulations, your web content is actually the copyrighted work of the people who wrote it, unless they are direct employees of your firm. In our case, that would mean that by default Waltham WordWorks owns the copyright to any works produced for a client. Under our contracts with clients, however, we explicitly transfer all rights in the material we produce to the client.

That’s one more area in which, when you work with us, we’ve got you covered.

Similar language to this can be found in various locations on this site but because of the topic of this post we can’t resist repeating it: This post is © Waltham WordWorks, 2020, and is not to be reproduced without written permission.