I’ve consistently warned website owners to be extremely careful with regards to content supplied by their web designers and developers. A recent ruling from a federal court in Ohio recently underscored that point by holding a website owner liable for infringement by its web designer.
In Corbis v. Starr, the court issued a summary judgment order finding that the defendant, who ran a janitorial maintenance service called Master Maintenance, could be held accountable for the unlicensed use of four Corbis photographs on its website. Even though there was no evidence that Starr or anyone in his company was directly responsible for the selection of the photos, the court determined that the company was joint and severally liable for the infringement (along with the web designer) because the website benefited it financially and it had the right and ability to supervise the infringing conduct.
While no damages were awarded on summary judgment, Corbis had a registered copyright in all four photos and therefore is able to seek statutory damages in a range of $750-$30,000 per infringement. And, the court found that there may be sufficient evidence of willful infringement, which could increase the damages range up to $150,000.
The takeaway if you’re a website owner: Make sure you have the right to use ALL of the content on your website, including text, images, illustration, photographs, audio, and video. Be a nitpicker, right on down to the icons used on the site and the legal contracts you use. Also make sure that you have proper rights to any software that is driving your site, be it HTML code or a Content Management System (CMS) program and any accompanying themes and plugins.
If your website uses any software or content that you didn’t create yourself, make sure you have a documented license to use the work. And make sure you’re licensing it from the correct party (do a web search to see if there are other versions of the content online). Keep good records of your licenses, or, if your web designer is buying licenses on your behalf, make sure you get copies.
Your web design company should indemnify you for infringement claims involving any content and software that it provides, although you should expect that it will seek indemnification from you for content that you supply. You should also see if your web designer carries errors and omissions insurance that would cover both of you if someone makes an infringement claim.
Finally, check with your insurance agent to see whether your general liability policy protects against advertising injury in the form of copyright infringement on your website.
Remember, copyright law is extremely strong in favor of copyright holders, and the burden is on you to make sure you have the necessary rights to use someone else’s work.
