In a recent article in Law Technology News entitled Is a Website’s Look and Feel Protected?, two legal scholars, Richard Raysman and Peter Brown, discuss the difference between copyright infringement of a web site and trade dress protection — a website’s “look and feel,” and how those two claims are mutually exclusive.
How does this apply to or affect a web designer/web developer? We all are very familiar with the concept of copyright infringement, and the wholesale copying of website content is, of course, blatant copyright infringement. We have also been witness to a website’s design elements being lifted by unscrupulous web masters or web designers. This article goes into detail about another facet of website copying. The copying of a website’s “look and feel,” which can be a trade dress claim under the Lanham Act, and is often mutually exclusive to a copyright infringement claim.
The “look” and the “feel” of a site also include an “overall mood, style and impression.” All of these elements produce an intuitive association with a company’s or brand’s reputation. In summary, for trade dress infringement, the question is similar to trademark infringement: Does the public associate the “look and feel” of the plaintiff’s site with the plaintiff or its products to the point that the defendant’s site causes confusion as to the source of the site?
So a web site not only conveys information about the product, service or business it is representing, but if done correctly, serves to further brand that product, service or business in the public’s eye. Any infringement of this branding can be a Lanham Act claim. While inherent elements such as the site’s HTML and CSS cannot claim to be infringing of someone else’s design generally speaking, under a trade dress claim, those underlying elements can be examined to determine whether or not they are such an inherent part of a website’s “look and feel” as to be infringing when considered with other elements of the website’s design, layout and content.
Proving such trade dress infringement includes analyzing intent. Does the ripped site contain blatantly copied elements? Was the copying done willfully or “for the express purpose of emulating the plaintiff’s site”?
So it looks like courts are now giving consideration to website “rips” beyond generally copyrightable elements such as original content and certain graphical elements, and are looking more closely at the totality of all of these elements and the underlying code to determine whether or not there is intent to copy a website’s “look and feel,” and therefore dilute that brand or identity.
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Joni Mueller has been designing web sites for hire since 2003, when she first blew up her web host’s server by insisting on running Greymatter. Since then, Joni has designed for Blogger and Movable Type, TextPattern, WordPress and CMS Made Simple. She lives with her cat and shoe collection in a bucolic old section of Houston called Idylwood. For some strange reason, Joni likes to refer to herself in the third person. When she’s not working on web design, she’s ordering lawyers around. And blogging about it. Or both.