Clients sometimes want to know “Is my website protected by copyright?”
The answer is a qualified “yes.” Many elements of a website are protected by copyright; some aren’t.
A recent court case, Media.net Advertising FZ-LLC v. Netseer, Inc., highlights some of the limitations.
At the level of what the user sees, the content on the website – the words, images, and videos – is protected by copyright. Copyright protection is automatic, although there are advantages to registering your copyright.
On the other hand, the “look and feel” of a website – the color scheme, layout, fonts, etc. — is NOT protectable by copyright (although elements may be protectable as “trade dress” under trademark law).
At the level of the software – how what the user see gets there – we also see important distinctions.
The HTML that contains the expression of a website is copyrightable as a “literary work,” assuming it was created by a human (and not automatically generated by a program) and contains sufficient creativity.
However, many of the supporting elements in the HTML – such as any “Cascading Style Sheets” (CSS) are not copyrightable.
In the Media.net case, the company filed a lawsuit against Netseer claiming it was violating its copyrighted “search-results page.” The company’s search-results page delivers context- sensitive ads. Media.net claimed that Netseer directly copied its HTML code.
Netseer filed a motion to dismiss the lawsuit because it claimed that Media.net’s HTML code is nothing more than uncopyrightable CSS.
One guide to what is and isn’t copyrightable is the Copyright Office’s Compendium of U.S. Copyright Office Practices, Third Edition. The compendium clearly states that
Style sheet languages, such as Cascading Style Sheets, are merely methods of formatting and laying out the organization of documents written in a markup language, such as HTML. Because procedures, processes, and methods of operation are not copyrightable, the Office generally will refuse to register claims based solely on CSS.
Media.net disagreed, claiming the HTML has sufficient creativity to be entitled to copyright protection.
The judge dismissed the case, although not on the grounds that Netseer alleged (i.e., “it’s all just CSS”). The judge found that Media.net had not identified which portions of the HTML code Netseer copied, and it had not shown howNetseer copied the HTML.
Media.net still has the opportunity to amend its claims and revive the case if it corrects those deficiencies.
