Footer Copyrights: A Definitive Guide to Why You're Wrong
© 2019 WidgeCo, Inc.
Many developers, who probably think they’re clever, even have the phrase automatically update with the current year.
The copyright notice has so proliferated the psyches of web designers and developers that you might be tricked into thinking it was codified by our Founding Fathers and chiseled into stone at the base of the Washington Monument.
Nothing could be further from the truth. It’s only use is to inform wanderers to the most derelict parts on your websites of the current year—and maybe the legal name of your client. Not only is including this notice absolutely useless for your client in a copyright dispute, it can actually hurt them, and by extension, you for parading around legal falsehoods.
Copyrights have value in their age. The longer you’ve staked your claim to a copyright, the more valid that claim becomes in a dispute. When you automatically update that date, you’re essentially saying, “I own the copyright to this work from this year on.” That means that if someone can substantiate a claim that they’ve published a piece of your content before the year you’re claiming the copyright, you’ve got a serious problem.
Now, you might think, “what courtroom in their right mind would use flimsy evidence like a date listed on a webpage?” But do you really want your client’s legal liability to rest on the technical proficiency of the general public?
And when everything ends up going pear shaped, regardless of how remote the possibility, where is your client going to try to recoup their losses? Maybe the person that sold them a faulty product?
I’m sorry to say, but just by the nature of including this simple phrase and your clever piece of code, you’ve opened your client and yourself to unnecessary legal liability.
“Why are we like this?”
Then, as digital nomads do, we observe, learn, and salvage what we find useful to make ourselves feel like we have those big budgets and all those resources. What we lack is context. Somewhere in that process, mistakes and mistranslations are bound to get made. Over time, the idea gets warped and manipulated to suit each new use-case, and because web design and development is largely a learn-by-example community, it gets salvaged, warped, and repurposed again.
And that’s how we end up with something as utterly pointless as the above copyright notice.
“So do I need any copyright notice on my website footer?”
Mandatory, “I am not a lawyer,” but probably not. According to the circular, Copyright Basics, from the U.S. Copyright Office, “copyright protection in the United States exists automatically from the moment the original work of authorship is fixed,” and “applying a copyright notice to a work has not been required since March 1, 1989, but may still provide practical and legal benefits.”
In the United States, everything you make as an original work is copyrighted automatically the moment you create it, and you don’t have to tell anyone about it.
To prove a valid copyright claim, you either produce a copyright registration certificate from the U.S. Copyright Office, or other proof that establishes the date the material was created. In the case where you don’t have a formal registration, there is probably better evidence that is harder to forge like server logs, Git commits, CMS logs, database indices, caching or archival services, Exif data, analytics utilities, and likewise. Even the classic, “mail it to yourself,” technique applies here.
None of those are a substitute for formally registering your copyright, and there are many benefits to doing so. For those of us who can’t—or more likely—won’t, the critical takeaway here is that the important date is the date the work was created, not that the date is kept current on the work.
“But what about those practical and legal benefits?”
Sure! Copyright notices do have practical and legal benefits… On each individual piece of content on your website, not the website as a whole. In another circular released by the U.S. Copyright Office, Copyright Registration of Websites and Website Content, they state, “although a website may contain text, artwork, photographs, music, videos, or other copyrightable content, the website itself is not typically considered a copyrightable work.”
It does, right after, say, “however, you may be able to register a website or a specific web page if it satisfies the statutory requirements for a compilation or collective work,” which most average commercial websites and landing pages probably won’t meet.
But yes, there are practical and legal benefits to including a copyright notice. They:
- make potential users aware that a copyright is claimed in the work and deter potential infringers
- may prevent a defendant in a copyright infringement action from attempting to limit his or her liability for damages or injunctive relief based on an innocent infringement defense
- identify the copyright owner at the time the work was first published for parties seeking permission to use the work
- identify the year of first publication, which may be used to determine the term of copyright protection in the case of an anonymous work, a pseudonymous work, or a work made for hire
- prevent the work from becoming an orphan work by identifying the copyright owner and specifying the term of the copyright
So, yeah, a copyright notice is usually a good idea… Just do it right.
“Well how the hell do I do that?”
I don’t know, I’m not a lawyer! Doing nothing is probably better than exposing yourself to the liability of doing it wrong. Hire a lawyer and resell their services. Having that offering available to your clients makes you that much more valuable of a partner.
That said, Circular 66 does offer some help for when you go to actually register your copyright.
“An individual work that appears on a website can be registered if it constitutes copyrightable subject matter and contains a sufficient amount of original authorship. It should be registered according to the predominant copyrightable content. For example, if you want to protect a blog post consisting mainly of text, you can register the blog entry as a literary work. If you want to protect a musical work that is available on a website, you can register it as a work of the performing arts. Likewise, a photographer who displays or distributes her photographs on a website can register these images as visual art works. In other words, works that are located on a website are registered in much the same way as any other work, and the [U.S. Copyright] Office applies the same rules when examining them.”
The same, more than likely, applies to the copyright notices. You’ll probably need to add a notice to each individual work—each blog post, each image, and so on.
“So, what would a proper copyright notice look like?”
As per Circular 3, Copyright Notice, from the U.S. Copyright Office, a notice consists of three elements that generally appear as a single, continuous statement.
- The copyright symbol © (or for phonorecords, the symbol ℗); the word “copyright”; or the abbreviation “copr.”;
- The year of first publication of the work; and
- The name of the copyright owner.
Example: © 2017 WidgeCo, Inc.
There’s also requirements for when you make significant revisions to or variations of a previously copyrighted work in which you list multiple dates, so as you update your evergreen content, your copyright notice for that content will appear with dates in descending order:
© 2017, 2015-2010, 2007, 2002 WidgeCo, Inc.
There’s lots of other guidelines too like joint ownership and ownership transfers, but again, I am not a lawyer and you should probably hire one. At least now, our copyright notices are starting to look a lot like the notices that appear in books. That’s a good thing because the publishing industry is mature enough, and embattled enough, to understand the importance of retaining a lawyer on these matters.
If you want to learn more, here’s the whole compendium chapter on copyright notices from the U.S. Copyright Office. I’m sure it’s a riveting read.
“Boy, that sounds like a lot of work…”
It is a lot of work, but possession is 9/10ths of the law. That’s why you need a lawyer and not fly by the seat of your pants. If you’re in a situation where you can’t—or more likely—won’t hire a lawyer to advise you, it’s probably better for you to do nothing and just let copyright laws work the way they’re supposed to. Focus on building awesome stuff and worry about hiring a lawyer when you’re in a better or more necessary position. In the meantime, if follow design and development best practices with regards to version control, you should never have a problem proving ownership in a copyright dispute—with the help of a qualified legal professional.
“I use creation dates like you said, but now my content looks out-of-date!”
It probably is, and you shouldn’t be relying on a copyright date to fake a signal to Google or your users that your content is up-to-date.
That said, if you do choose to include a copyright date, Google might actually use it to date your content in the index. That may not always be what you want, especially when your content is intended to be evergreen. Whether or not to date your content is actually a pretty big question, and you don’t want to signal to your users that content is out-of-date when it isn’t. In my opinion, this is just more fodder for leaving copyright dates off of your website.
“Apple, Microsoft, and Facebook use the wrong way!”
They sure do. Apple, Microsoft, and Facebook also have the legal means to defend themselves in any intellectual property dispute without breaking a sweat. The copyright notice on their website is a drop in a veritable ocean of documentation, records, and evidence they produce in order to defend their IP. This is a situation where they’re so rich, they can do whatever they want. Does that describe your clients? Does that describe you?
“But my client demands it on every page, and I’m lazy.”
Now here’s an argument I can relate with. Reminder: I am not a lawyer. That said, I cannot find a problem with adding a simple, automatically updating date range to your footer. It doesn’t invalidate the copyright claims of any individual piece of content so long as the earliest date is the creation date of the oldest piece of content on the site.
If that’s the case, we have a fairly concise copyright statement:
© 2019-2012 WidgeCo, Inc.
It’s still probably useless, but it’ll do.