Photo publisher’s checklist: Seven New Year’s legal resolutions for your website

Here are seven resolutions – not including the obligatory “get in shape” or “be more organized” – that you may want to consider for 2022.

• Copyright Ownership. Check that you own your website’s content, which generally requires that your employees created the content in the regular course of their duties, or that you have a proper copyright assignment or “work-for-hire” agreement for outside contractors. Confirm that your work-for-hire agreement covers the contemplated work (not all types of work can be the subject of a WFH agreement), is clear on the issue of ownership, and is signed before the work’s creation. Confirm you have added copyright management information (CMI) – which is “identifying information” about the copyrighted work, the author, and the copyright owner – to your site. This may help under the Digital Millennium Copyright Act (DMCA) if a potential infringer removes or alters the CMI when they copy your content.
• Timely Registration. Identify your most important website content and consider registering it with the Copyright Office. To be eligible for statutory damages, you must generally register any published works within 90 days of publication or before a claimed infringement begins. You can obtain a registration for a minimal cost, particularly compared to the potential statutory damages of up to $150,000 per infringement. A registration is a prerequisite to filing a copyright infringement lawsuit, and it will aid you in removing your stolen content from other infringing sites. 
• Domain Names. Confirm your domain name is locked against transfers, calendar when the domain registration will expire, and ensure that the current, full corporate name is used as the registrant, particularly if there have been mergers or changes in corporate form. Consider registering domain names with misspellings or nicknames for the company to reduce the risk a third-party will register them. Be sure that you are listed as technical and administrator contacts. Sometimes website designers will list themselves as the administrative contact. You will usually want an employee in that position. And review your agreement with that employee so that if the relationship turns sour, they leave the company, or are unavailable, you can change the registration information to prevent them from holding your domain hostage.
• Terms of Service. Review your terms of service to confirm they are prominent, current, and provide a right to update. Your site should offer site users the terms, allow them an opportunity to review, and inform them of what actions constitute their agreement to your terms. The terms are generally more likely to be enforceable if a user is required to take action to accept them (e.g. by clicking a box to indicate acceptance).
• DMCA Agent. If you allow third-party content on your site, you should register a DMCA agent with the U.S. Copyright Office (or if you previously registered one, confirm the information is current). Rights holders who want to submit a takedown request to you for third-party content might first check the Copyright Office’s online agent directory. You should provide this same designated agent information on your website. Finally, implement a process to “expeditiously” respond to each submitted takedown request (and otherwise comply with the DMCA’s requirements) so that you can claim the “safe harbor” protection against a subsequent copyright claim.
• Privacy Policies. A privacy policy generally tells site users the 4W’s and 1H of your collection of their personal data – who collects their data, what data you collect, when you collect it, why you collect it, and how you use and disclose it. Your information collection practices and privacy policy may need to comply with the California Consumer Privacy Act (CCPA), and Europe’s General Data Protection Regulation (GDPR), depending on different facts (e.g., the type and size of company, to whom your website is directed, etc.). You should check your policy to make sure it is consistent with your current practices, and that you have a business need for the data you collect and retain. You do not want to collect – and be under an obligation to protect – data that you no longer need or use.
• Trademarks. Review your website for consistent use of trademarks and trademark symbols. If you obtained federal trademark registrations, you should generally use the registered trademark symbol ® with such marks, and if you claim common law (i.e., unregistered) trademark rights, you can use the ™or ℠ trademark symbols.

From all of us at the In Focus Blog, we wish you a happy, and healthy, New Year in 2022.

Mike Nepple, Jennifer Visintineand Mark Sableman are partners in Thompson Coburn's Intellectual Property practice group.