Ed. Note: This is the second installment in a two-part series. See the March issue of AVN Online for the first installment.
Last month’s column examined the fundamentals of copyright registration. This month’s topic takes that a step further, reviewing the particulars of registration of websites and making sure you can nail rip-off artists for big bucks.
As noted last month, websites don’t lend themselves very well to the simple registration processes that are applicable to photographs, motion pictures, or books.
In those instances, as explained last month, you simply send to the U.S. Office of Copyright (Library of Congress) the applicable registration form, a depository copy of the photograph, motion picture, or book along with a check for around $45, and you are set. Utilizing that procedure, you may need to send in a registration for your website every few days, which would be cumbersome and expensive. No doubt that idea probably dawned on you if you read last month’s column.
As an aside, completely apart from your copyrights are your trademarks—the exclusive right to use your trade name and your logos. (An article about that topic is forthcoming.)
The ins and outs of copyright registration for a website depend upon what kind of a site you have. For example, if you have a video-on-demand site, the copyrights on the videos that are "on demand" already have been registered by the producing studio (or, at least you would assume that, since you paid for a license to exploit the copyright). So, what needs to be registered is the delivery mechanism—the artistic look of the site as a whole. And, since that part—the "frame" around the videos you are offering—presumably doesn’t change often, the problem faced by continuously changing sites doesn’t exist. Remember: All that is required for infringement is "substantial copying," so if all you do is add more titles, then you would not need to update the copyright registration unless the site underwent a significant facelift.
The procedure to register a website usually would call for either Form VA, which is for pictorial and graphic works, or Form TX, which is for literary material. The Office of Copyright recommends that you use the form that corresponds to "the predominant material." But, don’t lose any sleep over trying to figure out whether your website is 51 percent to 49 percent, text over artwork—or vice versa—because the difference between the forms that would be relevant to registration of websites is for administrative purposes only. It’s no defense to website copyright infringement that the author used the wrong form.
More attention to this process is required for websites that are subject to frequent revision. Group registration is available for what are called "serials" on one of the three forms designated Form SE. The copyright office defines a serial as "a work issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely." Short Form SE is for magazines and their Internet counterparts, where the protected product comprises a collection of brand-new domestic works made "for hire."
As noted in the first installment about this topic, the issue of whether a work is "for hire"—so that the employer, not the employee, is the author—can be a difficult one. The surefire way to remove any uncertainty about it is for the author to sign a "work-for-hire agreement." Most websites are collections of works for hire, either because their design is outsourced to Web designers or because they are created by one or more employees of the corporation or LLC that owns the site. And, even if you are the sole owner of the corporation or LLC that owns the website (and therefore, through that ownership, are the "author" of the site for copyright purposes) and you design and build the website yourself, you also are an employee of the corporation or LLC—even if nobody else works there. (If you are not listed as an employee, the IRS probably would like to have a word with you.)
Regular Form SE is for other serials. Form SE and Short Form SE require each edition of the serial to be submitted separately—requiring the shelling out of many, many $45 fees.
So, the copyright office created Form SE/Group, through which an entire series of issues of a serial can be submitted together, but only if the registration meets exacting requirements. Not only must it be a collection of works made for hire (true of all serials), but you must meet the following additional requirements:
1) Give a complimentary subscription for two copies of the serial to the LOC, confirmed by letter to: Library of Congress, Group Periodicals Registration, Washington, DC 20540-4161.
2) The registration must be in the collective works, not individual components of them.
3) The author must be the same for all issues of the serial.
4) Each issue must have been created no more than one year prior to its publication.
5) Publication must be no more frequent than weekly and under the same continuing title.
6) The multiple issues registered must have been published within a 90- day period during the same calendar year.
Where publication is more frequent than weekly, Form G/DN applies, which is for newspapers and "daily newsletters," the latter of which most likely would be applicable, defined as "a serial published and distributed by mail or electronic media [including online]…Publication must occur at least 2 days per week, and the newsletter must contain news or information of interest chiefly to a special group…"
Another category of regularly modified websites is the "derivative work," which is a work that primarily is a new work but incorporates some previously published material. Derivative works use the same form as original works (like TX or VA); unfortunately, each must be registered separately.
More details about this topic are found at www.copyright.gov, particularly Circular 66. Now, go forth and register!
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
