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May 2, 2008

Protection of Website Content - The Limits of Copyright

Christopher Barnett Archives

Posted on December 5, 2007 10:00 AM

December 11, 2007

Protection of Website Content - The Limits of Copyright

Owners of successful commercial websites increasingly find themselves faced with the challenge of protecting their Internet content against the misappropriation and copying of that content by others, including, most importantly, by competitors. Compounding this problem is the fact that those who would misappropriate and copy that website content may be able to avoid liability for copyright infringement by copying only the "look and feel" of another site, rather than the original words or images.

A recent case from the Southern District of California highlights the difficulty of proceeding with a copyright-based claim of website content infringement. In Allen v. Ghoulish Gallery, the plaintiff sued the defendant for infringing his asserted copyright in the website he had created for his business, which produced and sold antique photographs that were altered using "lenticular technology" to create a "spooky" alternative image, depending on the angle at which the photograph is viewed. These "changing portraits" are popular in the haunt industry and as novelties. The plaintiff's and defendant's businesses were in direct and, apparently, heated competition with one another.

In reviewing the plaintiff's copyright infringement claims, the court noted that the individual elements displayed on the plaintiff's site - fonts, navigation buttons, image frames, etc. - generally were not original or copyrightable. However, the court also noted that where "specific components of a compilation are not original or would not be protected by themselves, a party nonetheless may have protection in the selection, arrangement, and presentation of such components." To obtain copyright protection under such a theory, a claimant must show: "(1) the collection and assembly of pre-existing material, facts or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an original work of authorship." In this case, the court found that these elements were present in plaintiff's web site and that the site was entitled to protection.

However, regardless of whether the content was entitled to protection, the court found that no infringement occurred. Where the work in question does not consist of original constituent elements, the inquiry involves a determination of whether there is a "substantial similarity" between the original work and the allegedly infringing work. That inquiry consists of an intrinsic analysis, based on "an ordinary person's subjective impressions of the similarities between two works," or an extrinsic analysis, which "focuses on specific criteria that can be listed and analyzed." Here, the court used an extrinsic analysis and found that no substantial similarity existed between the two sites. The court noted that the two sites used the same fonts for the same purposes, the same configuration of tabbed links to different site sections, and "framed" examples of portraits, with either black oval "matting" or no "matting," and substantially similar configurations of sample portraits. However, because the two sites used different colors within a predominantly black theme (which both also shared), different "framing" for the portraits, and different textual elements, the court ruled against the plaintiff's copyright claim, and proceeded to take up the other claims of unfair competition and false claims that also had been raised.

Thus, if Allen is any indication, while copyright may be an option for businesses facing infringement of their website content by competitors, it could prove to be unavailing in many cases.

The Allen opinion is reported at 2007 WL 4207923

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