Hello,
I'm a freelance web designer and I've been designing for companies in Europe.
My problem is someone copied one of my designs, it really looks the same.
Is he liable for that?
Can I sue him for Copyright Infringement?
What if the design is the same, but the codes are different?
Please I need your advices.
Copyright Infringement on a Web Design
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johansonportfo
- New Member
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Copyright Infringement on a Web Design
Sweden Designer blog - http://patrikjohanson.se/
Hej Patrik
A typical website consists of several components, such as code, scripts, images, video or flash, music and of course text. All of these can attract copyright if they contain sufficient originality or reflect the personal creativity of the author/designer. An well-known example is the text or images which make up the main factual content of a website, although of course the copyright in these particular items may belong to the client or site owner. This won't matter if these components have been changed to reflect the different purpose of the other site. The overall design of a site, ie how things are laid out, colour schemes, choices of fonts, use of graphic effects etc will generally arise from the choices made by the designer, and this overall design could well be subject to copyright, or on occasion, to database right. Database right is slightly different to copyright both in terms of how the creative element is defined, and also in the protection which it provides.
Since I imagine you are asking from a Swedish perspective, it is good to know that the law on all of this has been harmonised (to a degree) across the EU, by means of several Directives, which each member state, be it the UK or Sweden, is obliged to transpose into their national law. The three main Directives for this area are:
The Copyright Directive
The Software Directive and
The Database Directive
(in each case I have given links to the main EU legislation site (eur-lex), from where you can open the relevant directive in the language of your choice.)
And here's a link to the Swedish Copyright law (in English, pdf), so that you can check the local implementation of the Directives.
So having taken some time to set out the background, has your design been infringed? Almost certainly it has from what you say. There are a number of defences to claims of infringement, including coincidental creation, which can apply, for instance in a software setting, where there are only a very limited number of ways of achieving an end result. Thus designing a webpage that consisted of a paper white background with black text in a common font and size would result in very similar HTML whoever designed it, but as the design becomes more complicated and distinctive, the chances of mere coincidence reduce. I assume that you have looked at the code which underlies the other site. If it is substantially the same as the code you wrote then this supports the argument that there has been infringement. But if you used a software program (like Dreamweaver) or library tools to design your site, the chances that another designer could have used the same tools and thus came to a similar design, may well favour the idea of coincidence. Ultimately only a court can decide, based on the facts presented to it by the parties involved. But I suspect you wish to avoid going to the courts, and therefore you should gather all your evidence in terms of screenshots, copies of the code and any other relevant material. This can then be presented to the alleged infringer in a compelling way which he may find hard to deny. Some commercial software deliberately includes commenting which has no affect on the way the software works, but acts as a finger print which can be searched for when copying is suspected. If your code contains any specific items, such as redundant declarations left over from an earlier version of the site, then these could prove conclusive, if the infringer has been too lazy to remove them from his copy.
The next step is to know what to do about it. You need to decide what outcome you are seeking. Is it just to have the other site taken down, or for them to pay you a fair fee for using your work, or perhaps an acknowledgement on their site that you are the designer. The second thing is to be clear about who is the infringer: the designer or the website owner/operator? Of course this maybe the same person, but if it isn't then it is most likely that a designer would be liable for primary infringement and the site operator liable for secondary infringement. The amount of knowledge of the owner about the infringement will be difficult to prove, but if it can shown that he said to the designer that he wanted a site that looked just like yours, then he might also be liable for primary infringement also. You then have to weigh up your chances of getting a financial settlement, if that is your aim. This will depend on whether the website is generating income, and where it is hosted. If the other site is hosted or operating* within the EU, things are much easier because as already mentioned, the law is harmonised to a degree, and you can in theory, bring a case in the Swedish courts or in the member state where the site is operating, but the law will be much the same.
I suggest that you approach the site owner/operator first as he/she has more to lose if the site is closed down, and so is more likely to want to reach a settlement. If you get no response or an uncooperative response, you can then approach the company which hosts the site and get them to take the site down. The legal provision to do this is set out in Article 14 of the EU eCommerce Directive if the site host is in the EU, or the DMCA if the host is in the USA. In fact the DMCA takedown system can be used in any country and many will recognise it as an alternative to their local laws on the subject. Once you get the site taken down, the owner really has to be prepared to deal with you, or walk away from his investment.
Afternote. I've just noticed that I didn't answer your question about the look being the same, but coming from different code. This would be much more borderline. There would be no copyright in the software aspect, and given that (I presume) any text and/or images may be different also, A copyright claim would rest on the graphical effect of your design as an artistic work. If this dispute went to the UK courts then there is some caselaw (the so-called Red Bus case) which would tend to suggest you might win assuming the court was persuaded that the other site knew of your design beforehand. However, Swedish caselaw may view this aspect differently so you would need to consult a lawyer there, if that was where you wanted to launch your bid for a remedy.
*'operating' in this context includes the public at whom the site is targeted. If it's a commerce site then the sort of factors which may be relevant are: the language used on the site, the currency (£ $ € SEK etc) and any address given for the customers to contact. If it's a non-commercial site, then the language or subject matter of the site may well be the best indicator. So for instance the Swedish Tourist Office will operate from Sweden, but it will most likely target other nations, and thus in the unlikely event that someone was to allege that the Tourist office had infringed their copyright, the act of infringement could occur in several different locations.
A typical website consists of several components, such as code, scripts, images, video or flash, music and of course text. All of these can attract copyright if they contain sufficient originality or reflect the personal creativity of the author/designer. An well-known example is the text or images which make up the main factual content of a website, although of course the copyright in these particular items may belong to the client or site owner. This won't matter if these components have been changed to reflect the different purpose of the other site. The overall design of a site, ie how things are laid out, colour schemes, choices of fonts, use of graphic effects etc will generally arise from the choices made by the designer, and this overall design could well be subject to copyright, or on occasion, to database right. Database right is slightly different to copyright both in terms of how the creative element is defined, and also in the protection which it provides.
Since I imagine you are asking from a Swedish perspective, it is good to know that the law on all of this has been harmonised (to a degree) across the EU, by means of several Directives, which each member state, be it the UK or Sweden, is obliged to transpose into their national law. The three main Directives for this area are:
The Copyright Directive
The Software Directive and
The Database Directive
(in each case I have given links to the main EU legislation site (eur-lex), from where you can open the relevant directive in the language of your choice.)
And here's a link to the Swedish Copyright law (in English, pdf), so that you can check the local implementation of the Directives.
So having taken some time to set out the background, has your design been infringed? Almost certainly it has from what you say. There are a number of defences to claims of infringement, including coincidental creation, which can apply, for instance in a software setting, where there are only a very limited number of ways of achieving an end result. Thus designing a webpage that consisted of a paper white background with black text in a common font and size would result in very similar HTML whoever designed it, but as the design becomes more complicated and distinctive, the chances of mere coincidence reduce. I assume that you have looked at the code which underlies the other site. If it is substantially the same as the code you wrote then this supports the argument that there has been infringement. But if you used a software program (like Dreamweaver) or library tools to design your site, the chances that another designer could have used the same tools and thus came to a similar design, may well favour the idea of coincidence. Ultimately only a court can decide, based on the facts presented to it by the parties involved. But I suspect you wish to avoid going to the courts, and therefore you should gather all your evidence in terms of screenshots, copies of the code and any other relevant material. This can then be presented to the alleged infringer in a compelling way which he may find hard to deny. Some commercial software deliberately includes commenting which has no affect on the way the software works, but acts as a finger print which can be searched for when copying is suspected. If your code contains any specific items, such as redundant declarations left over from an earlier version of the site, then these could prove conclusive, if the infringer has been too lazy to remove them from his copy.
The next step is to know what to do about it. You need to decide what outcome you are seeking. Is it just to have the other site taken down, or for them to pay you a fair fee for using your work, or perhaps an acknowledgement on their site that you are the designer. The second thing is to be clear about who is the infringer: the designer or the website owner/operator? Of course this maybe the same person, but if it isn't then it is most likely that a designer would be liable for primary infringement and the site operator liable for secondary infringement. The amount of knowledge of the owner about the infringement will be difficult to prove, but if it can shown that he said to the designer that he wanted a site that looked just like yours, then he might also be liable for primary infringement also. You then have to weigh up your chances of getting a financial settlement, if that is your aim. This will depend on whether the website is generating income, and where it is hosted. If the other site is hosted or operating* within the EU, things are much easier because as already mentioned, the law is harmonised to a degree, and you can in theory, bring a case in the Swedish courts or in the member state where the site is operating, but the law will be much the same.
I suggest that you approach the site owner/operator first as he/she has more to lose if the site is closed down, and so is more likely to want to reach a settlement. If you get no response or an uncooperative response, you can then approach the company which hosts the site and get them to take the site down. The legal provision to do this is set out in Article 14 of the EU eCommerce Directive if the site host is in the EU, or the DMCA if the host is in the USA. In fact the DMCA takedown system can be used in any country and many will recognise it as an alternative to their local laws on the subject. Once you get the site taken down, the owner really has to be prepared to deal with you, or walk away from his investment.
Afternote. I've just noticed that I didn't answer your question about the look being the same, but coming from different code. This would be much more borderline. There would be no copyright in the software aspect, and given that (I presume) any text and/or images may be different also, A copyright claim would rest on the graphical effect of your design as an artistic work. If this dispute went to the UK courts then there is some caselaw (the so-called Red Bus case) which would tend to suggest you might win assuming the court was persuaded that the other site knew of your design beforehand. However, Swedish caselaw may view this aspect differently so you would need to consult a lawyer there, if that was where you wanted to launch your bid for a remedy.
*'operating' in this context includes the public at whom the site is targeted. If it's a commerce site then the sort of factors which may be relevant are: the language used on the site, the currency (£ $ € SEK etc) and any address given for the customers to contact. If it's a non-commercial site, then the language or subject matter of the site may well be the best indicator. So for instance the Swedish Tourist Office will operate from Sweden, but it will most likely target other nations, and thus in the unlikely event that someone was to allege that the Tourist office had infringed their copyright, the act of infringement could occur in several different locations.
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