If a business creates a Web site or has an employee create one, the business immediately has ownership of the copyright. But if a vendor creates the site, the business must ensure that it owns the copyright in the work of others.
The easiest way to protect your Web site is a simple written agreement covering the parties' rights and obligations, stating the creator's compensation and schedule for completion and acceptance of the Web site, and assigning worldwide intellectual property rights, including copyright, to you. Otherwise, the business may end up with only a license to use the copyrighted material, leaving the vendor free to resell the work.
A business must also be careful that its site content does not violate someone else's copyright. If the content is copyrighted by another, the business must determine whether its use of the work is fair use. For example, criticism, comment, news reporting, teaching, scholarship or research is, within certain limitations, deemed fair use.
There is no hard and fast rule for determining fair use, but there are four tests to make the evaluation.
* Will the use be commercial, which is more likely to be held an infringement than, for example, a nonprofit, educational use?
* How much creativity does the work embody? Facts and ideas cannot be protected by copyright. The copyright protects a tangible expression of the work. Generating a telephone directory may take substantial time, but it is not considered a great creative effort.
* How much of the copyrighted work is used? This involves both qualitative and quantitative expression. A tobacco company once used a single sentence from a doctoral thesis in an advertising campaign, which was deemed to be copyright infringement, not fair use.
* How much will the use damage the copyright owner? For example, reproducing someone's unpublished market research could do great damage, while posting part of a 10-year-old newspaper article likely would not.
Even if a business has permission to reproduce copyrighted material in hard copy, such as in a newsletter, it may not be able to put the material on its Web site unless its agreement with the creator says so. Arnold B. Silverman is a lawyer with Eckert Seamans Cherin & Mellott. Reach him at (412) 566-6000.