Joined: 29 Jan 2010
|Posted: Mon Feb 06, 2017 10:36 pm Post subject:
I note that you are based in the USA so I should preface these remarks by saying that they are based on my limited knowledge of US law on the subject. In particular the federal circuit for your particular state may have established specific caselaw on this subject that I am unaware of. If in doubt check with an attorney local to you for furtther advice or contact your local Better Business Bureau.
Those contents of your website which you have personally authored, such as the text, and any drawings or photographs etc, will be protected by copyright. A simple notice on the site about copyright is advisable but not legally mandatory. If someone copies a substantial part of your website verbatim then you would certainly have grounds to go after them. But it may depend on what they do with the material they take from your site. If they just set up another cooking business, their use of your material will almost certainly amount to infringement. But if they put that material to an entirely different use (say they set it to music and produce a song and dance routine using your words) then they may be protected from liability because of the US docrine of Fair Use, which includes so-called transformative use. Some federal circuits take a wide view of what is transformative, while others a narrow interpretation.
Let's say the use is virtually identical to your use and so infringement seems likely. If it's another website, then the simplest and most straightforward action you can take is to issue a DMCA Takedown notice to whoever hosts their site (GoDaddy or a similar type of operation). This may involve doing a Whois query to determine the owner of the hosting server amd checking with the US Copyright Office directory of agents, for the official contact for that company. But once your notice has been received the hosting service must act expeditiously to remove those parts of the site which you identify as infringing your copyright (normally the complete page containing the infringing materail is removed, rather than, say, just a single photograph on page 2). The hosting service then notifies the site owner and gives them your contact details in order that the site owner can issue a counter notice if they contend that the material is not infringing. The smart person does not dispute a genuine DMCA notice because the consequences can be expensive. If they do counter notice or worse still start another site using the same material, you may well need to start a legal claim. For that you will need to get an attorney. Unfortunately the USA does not yet have a small claims system of speedy justice on copyright issues like we do in the UK. The next step is to register whatever it is that has been infringed (text as a literary work and photographs and drawings as artistic works) with the US Copyright Office. You can do this online and the basic fee is $35. But the benefits of doing this are enormous. For each infringment (so each image or piece of text which has been copied will be a separate infringement) you can expect statutory damages in the range of $750 to $30,000 per work. I don't know the exact criteria the courts use to determine the level of damages.
If you fear that your site is likely to be copied, it would be a sensible precaution to register a copy of it with the US Copyright Office pre-emptively as this saves time later and removes the need to prove to the court or the other party's attorney that you are the legal copyright holder.
Bear in mind that certain things on your website may be considered as 'facts' and so will not be protected by copyright. Here is an extract from the US Copyright Office Compendium
|313.4(F) Mere Listing of Ingredients or Contents
A mere listing of ingredients or contents is not copyrightable and cannot be registered with the U.S. Copyright Office. (37 C.F.R. § 202.1(a)).
• A list of ingredients for a recipe.
• A list of components for a formula, compound, prescription, or the like.
• A list of musical tracks contained in a compact disc.
• A product label that merely lists the ingredients for the product, merely describes the product, or merely describes the contents of the product packaging.
The Office may register a work that explains how to perform a particular activity, such as a cookbook or user manual, provided that the work contains a sufficient amount of text, photographs, artwork, or other copyrightable expression. However, the registration does not extend to any list of ingredients or contents that may be included in the work. [ ... ]
I hope this answers your question.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007