By: Suzanne D. Nolan

            Physician practices frequently use websites as both a valuable marketing tool to attract new patients, and to enhance the level of services provided to their existing patients.  The use of a website allows a practice to broadly advertise and help introduce prospective patients to the practice’s health professionals and services.  However, the benefits of a practice website can be negated if the practice becomes embroiled in litigation over the use of copyrighted content.  This article will address a few important considerations all physicians should keep in mind when utilizing a practice website.

            First, a basic understanding of copyright issues is helpful.  A copyright protects the practice’s ownership of the content on its site by preventing third parties from, among other things, copying or displaying content owned by the practice.   At the same time, a practice has to make sure that it respects the intellectual property rights of others and does not reproduce or display copyrighted content owned by anyone else. 

            Generally, website content consists of a collection of individual creative works, such as photographs or illustrations, audio clips, video clips, podcasts, and text.   In addition to the individual copyright in each of these works, a copyright also exists in the combination of individual works and the manner of their arrangement on the website.

            Most practices utilize the services of web developers to create a website.  Typically, the web developer selects the content to be used and writes the computer code for the website.  Although the web developer may create some of the content of the website, the web developer also uses content created by third parties, either by hiring them to specially create content or by purchasing or licensing content already created by the third-parties.  For example, the web developer may arrange to have a photographer take photos of the practice’s physicians or facility, or the web developer may purchase and use general “clip art” type images to personalize the site and make it more attractive to prospective patients.  The practice’s physicians may even supply content directed toward educating patients about certain medical issues.

            It is important to note that the owner of a copyrightable work is initially the person who creates the work.  Therefore, unless there is a written agreement in place to the contrary, the web developer hired by the practice to create the content and code for the website, and not the practice, will own or control the copyright in the content and code of the site.  A practice has the right to use these works on the site only if the practice either owns the works, or has duly licensed the works.   In order for the practice to have the exclusive right to use the content, the web developer must assign or exclusively license the content to the practice.   Otherwise, the practice will not be able to prevent the web developer from using the content on other websites, or prevent third parties from copyrighting the contents of the practice’s website.

            For example, if a practice uses a logo, the logo may be the most important image on the website and a valuable marketing tool.   However, just as is the case with other content on the website, the practice will not own the logo unless the creator of the logo transfers its copyright interest to the practice, even if the practice pays the creator for his or her services. Therefore, unless the practice owns the logo, the web developer who created it could sell the rights to use the logo to other web developers.         

            If a web developer (or any other person supplying content) uses content that has been developed by a third party, the supplier must have the consent of the third party to use this content.  For example, a physician in a cardiology practice may post cholesterol-management articles obtained from a medical association on her practice website.  Even if the physician attributes the articles to the association, this is not enough to avoid a potential copyright violation - instead, the physician should contact the association and obtain permission to use the content.

            The Internet abounds with images that are subject to copyright protection such as stock photographs and illustrations that can be licensed without charge or licensed for fairly reasonable one-time fees or annual fees.  Given the vast amount of material on the Internet, it might seem unlikely that any infringement would be noticed by a copyright owner.  However, businesses whose primary source of revenue is earned by selling or licensing images protected by copyright actively monitor use of their images on websites.  “Bots”, which are software applications that run automated tasks over the Internet, are used to very easily and accurately detect infringing content.  A copyright owner pays significant fees to hire a specialized company to do such monitoring.

             Accordingly, when an infringing use of content is discovered, the owner wants to recover the cost of monitoring, the license fee that the owner would have earned, and legal expenses.  Copyright owners often demand (under threat of filing suit for copyright infringement) several times the amount that it would have cost a practice or web developer to initially license the consent.  Such an approach puts the practice in the difficult position of capitulating to the demands of the copyright owner, or paying even more in fees to defend the threatened litigation.  Thus, it is generally cost effective for a practice to properly license content prior to using it.  

            In many cases, a practice may have innocently used content provided by a web developer in the belief, usually based on the web developer’s representations, that the web developer owned the content and had duly authorized the practice to use the content.  It is a common misconception that because the practice relied on such representations, it will not be liable for copyright infringement.  In fact, copyright law imposes liability on anyone who, among other things, copies or publicly displays content without the permission of the copyright owner.

            ">A practice can protect itself by making sure it owns the content of its website or has duly licensed such content.  The following suggestions will go a long way towards avoiding third party infringement claims: