Entertainment & Intellectual Property Law

Third-Party Content On Your Website: Best Practices

Posting Third-Party Content:

Copyright owners have certain exclusive rights, including the right to copy, display, publish and perform their works.  A copyright in a work exists as soon as it is put in fixed, tangible form.  Many mistakenly believe that if there is no copyright notice on a work then it is unprotected or if you give credit to the author of the work, you are in the clear.  Wrong.

Strong penalties exist for wrongful copying, otherwise known as copyright infringement.  If proven, a copyright owner could be entitled to actual or statutory damages for the unlawful copying.  Many plaintiffs choose statutory damages because the burden of proof is lower.  Statutory damages can range from $750 to $30,000 per infringing activity, or $150,000 if the infringement is found to be willful.

When posting content belonging to a third-party, employ the following best practices:

  • Assume the third-party content is protected.   All text, artwork, photos, songs are protected under either copyright laws or trademark laws.  Unless you have evidence that a work is not protected, assume that it is.
  • Do not rely on “fair use.”  Fair use is a limited defense in a copyright infringement action.  If you are relying on fair use, you have already been sued.
  • Obtain permission before reposting content to your website.
  • Remove unauthorized material from your site immediately.  Even if you believe you have the right to post the material, take it down while you investigate.

Linking to Third-Party Website:

There are many benefits to linking to a third-party’s website content.   The added content can enhance the usability and usefulness of a website.  You must also be careful because linking can inadvertently infringe existing trademarks or copyrights if the information contained in the link is being duplicated or “framed” by the material behind it.  Framing occurs when you divide a website into separate framed regions and post third-party content into a “frame” on your site.  Some courts have found framing to constitute copyright infringement.

Below are some helpful tips to keep in mind when linking to third-party content.

  • Review the website’s terms and conditions policy to ensure links are permitted or determine if consent is needed.
  • Ensure that your link simply transports a visitor to the website and does not duplicate the information contained in the link.
  • Disclaim liability for linked content in your terms and conditions policy.  You can also include separate screens or pop-ups to advise visitors that they are leaving your website and entering a linked site.  Include a note for the visitor that you have no control over the linked site’s content.

For more information or for assistance in drafting website terms and conditions policies, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com