You have spent countless hours perfecting your website to be attractive to potential clients and easy to use for your current clients. You have crafted catchy content to go with each “sneak peek” of your photo shoots. Then you come across a near carbon copy website set up by another photographer in your area with very, VERY minor changes. What do you do?
You start to wonder… is the text on my website legally protected?
Fear not! There are legal protections in place for an issue like this!
First Things First
Is your content protected? Remember, as soon as content is created it is protected by copyright law, whether you have registered the content with the United States Copyright Office or not. However, some of your content may be used without your permission under certain exceptions. One such exception is “Fair Use”, which is a nebulous concept with no hard cut definition of what falls under its protection. §107 of Title 17 U.S.C. lays out the four factors that courts use to determine if a use of one’s work is ‘fair use’. They are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
In general, you can be sure that the more of your content that is copied verbatim for non-commentary or educational purposes, the more likely Fair Use does not apply, and you can request that it is taken down.
One of the main legal avenues to protect your work on the web comes from The Digital Millennium Copyright Act, or the DMCA. The DMCA is a part of United States copyright law and provides protection to content online that has been infringed. The DMCA does NOT require that the content be registered with the U.S. Copyright Office in order to fall under their protections.
The DMCA provides a solution to your ‘website copycat’ problem called the Takedown Notice. If you come across a ‘copycat website’, you can use the DMCA Takedown Notice to request that the content being used without your permission be taken down. You will need to identify the appropriate party with the website’s Internet service host who you need to send the notice to. Then you will need to craft a notice that addresses the six specific items named in the DMCA. One of the required items is information sufficient enough for the Internet service host to locate the information. The best way to do this is by immediately taking screenshots of the copied content that includes the URL.
The copycat photographer can respond with a counter-notice or simply ignore your notice. This might mean that a compromise will need to be negotiated or a court case will be required to achieve your goal of having the content taken down.
A DMCA Takedown Notice is not required in every situation. Some other solutions that may be useful before take that route, including:
- Ask the website owner to take it down! In the case above, a simple email to the photographer asking her to take down your content may work. However, not every website owner will comply with a personal request, so further action may be required.
- Send a ‘cease and desist’ letter to the website owner. This is a more formal option that will often state what you want done, a deadline, and what action you will take next if the deadline is missed. This letter can be crafted by you or by your attorney.
In addition, there are steps you can take to be notified of any ‘copycat’ websites. For example, you can set a Google alert to be notified of the latest Google search results about your chosen topic. There are also websites such as Copyscape that allow you to search for your content across the web for a fee.
The actions you choose to take are up to you, but your content does have legal protection options!