What parts of a web page are copyrightable? I’m reading a forum where an artist is upset because someone “borrowed” her source HTML to create a new web page, basically retaining the overall function, while changing the look of the site by replacing the original site’s images and content. The artist knows her source HTML was stolen because the “borrower” left the original owner’s name in the meta tags :wally
This raises some interesting philosophical and legal questions. Now I know for sure that original images on web pages are protected, as well as other original content, such as essays, or music, but what else? Is the literal source HTML protected? I imagine the “look and feel” is protected, but what about functionality? There are only so many ways you can code a frame, so who gets dibs?
I’ve looked on the internet but haven’t found anything definitive. Links would be appreciated.
This is an interesting question. I’m not a lawyer, but I took a course on media law and ethics that covered just this sort of thing.
The short answer to your question is that all the things you named are covered under the protection of a copyright. As soon as you fix a work in tangible form it is ‘copyrighted’ by the author, whether it’s the graphical elements, the site overall, or the programming behind it. One does not necessarily have to register a copyright for it to be a valid protection under the law, but doing so serves as proof of timeline and content of registration.
I just recently applied to register copyright for my company’s website with the US Copyright Office. According to their site, here is a list of what may be copyrighted:
We classified our site under the ‘literary works’ heading. We were required to submit a photocopy of every page on the site, list our company’s contact information, and pay a small registration fee. Any time a change is made to the site, we submit a new copy. We were mostly concerned about the content on the site, not the underlying programming but you could very well print out the HTML and include that with the copies of the site to be included in the copyright.
I don’t think there’s a lot of case law, but the copyright should cover the HTML code, the text, graphics, original scripts, and any original media.
“Look and feel” is more problematic; it’d be hard to make a case. I’m not sure Apple was able to do it vs. Microsoft, so it’s unlikely a single website user can do it.
Note that the HTML tags, etc. are not copyrighted, but the placement and usage of the code can be. It’s equivalent to the alphabet: anyone can use it, but if you use it in the exact same order as the original, you’re in copyright trouble.
Of course, the person whose website is copied needs to have registered the copyright (if it’s in the US) to get any damages. In this case, it sounds like an infringement, but without registration, the options are limited.
Yes, they are copyrightable, including both content and code. It’s best to put a copyright notice on all pages, although I don’t think that’s strictly necessary (but I could be wrong). IANAL, but this is what I’ve been told by our legal people.
Proving copyright infringement is a different matter. First of all, I think you have to have registered the page with the government to sue. And then, as you say, there’s only so many ways to code a page to achieve a certain effect. A character-for-character matchup on the coding might do it, since IME it’s very rare for two programmers to type the same piece of code in the same way. It might not even need that, depending on how complicated the page is (the more complex, the more ways to do it, so the less chance that someone else would do it exactly the same - especially if you start looking at CSS classes or Javascript functions). Another angle (especially for very intricate pages) might be the “unique look & feel” that was copied. I don’t really know what the legal details are though, I’m only guessing about possible maybes.
Or, of course, unless the thief is stupid enough to, say, keep the author’s name in his code.
Is HTML covered? It’s not really a programming language, merely a formatting markup language, and therefore very limited and repetitive. There are thousands of sites with the same pieces of HTML in them. I’m not talking about something like a unique Java program with a unique configuration of functionality.
If you compare that to literature, phrases in common usage are specifically not copyright protected. Something in the literature has to be uniquely identifiable as yours. Why would HTML source be different?
It isn’t any different. Unless the page is extremely simplistic, or built from a template it should contain enough content to be put together in a number of ways, giving it a unique structure. Implementing tables, graphics, fonts, backgrounds and the rest in a particular manner will give you a work that is, in its entirety, separate from any other page out there. If you were to construct a novel out of nothing but phrases in common usage, while any individual phrase could not be copyrighted, the work as a whole could because the way the phrases are put together would still be unique. In the same way, you can use common markup tags and still copyright the entire finished product.
Whether or not copyright infringement has occurred would depend on just how much the code was changed from the original source. If it varies enough (and how much constitutes ‘enough’ would have to be determined by a court, most likely) then it may not constitute infringement.
Do most designers nowadays use code generators to design web pages instead of notepad? How does that play into this issue? Would that mean that the function and look is the unique creation instead of the lines of source code?
Architects and engineers still hold copyright to their work even though they use design programs to aid in their work. How the work is created is irrelevant. A copyright will protect any unique work that has a tangible form. Even though the code may be generated by a WYSIWYG (What You See Is What You Get - refers to programs that have a graphical interface that lets you literally build your page as it will be seen vs. writing the code out long-hand) program it is still being created at the hands of the designer, and is a unique work in tangible form.
I don’t know offhand of cases where website copyright infringement has been litigated, but I don’t see how using a program to create the source code v. writing it out longhand would be any different than using tools to create any other piece of work that can be protected under copyright. I don’t see that it would be different than a writer using a word processing program to write a novel, or an artist using a wacom tablet and photoshop instead of a paintbrush. If I create a painting on my computer, I hold copyright over that image whether it is published online, recreated in print, or presented in any other manner.