5 Biggest Copyright Pitfalls for Web Designers

5 Biggest Copyright Pitfalls for Web Designers

on Sep 28th 2010 with 47 comments

When it comes to design, copyright is often a very muddled gray area. Just as the lines between plagiarism and homage are often confusing, so too is the line between infringing and non-infringing use of copyrighted material. Since it is natural and even expected of Web designers to incorporate elements from other sites and other creations, it is important to understand the risks and hazards when it comes to copyright in Web design. As such, here are five of the most common copyright pitfalls Web designers face and how to best avoid them.

1. Images

The most common issue many web designers face when it comes to copyright law has to do with the images they use in their layouts. For some designers, it is common practice to find images they need by doing a Google search or pulling an unlicensed image from a stock photo library.

The problem with this is that, as Google itself warns, these images are usually protected by copyrights, and their use as part of a layout almost certainly constitutes an infringement. Historically, artists have not had many resources for finding such infringements, but as detection tools improve in quality and drop in price, more infringements are being detected.

It is important that you always make sure you have the rights to use an image in your layout, even if it is just a placeholder.

If you need to locate free images that you can use legally, search for Creative Commons-licensed work on Flickr or visit StockXchng (sxc.hu) to find high-resolution images you can use legally – as long as you are sure to follow the terms of the licenses carefully.

2. HTML/Source Code

Most Web designers are expected to crib some of their source code, either from other sites or their previous work. But where taking a portion of a page to get a table format or a few CSS elements from a stylesheet likely won’t raise any alarm, large scale copying, such as taking an entire style sheet or whole theme elements, likely constitutes copyright infringement.

The problem is that HTML code, much like computer software, is considered an original work of authorship, even if it is created with the help of tools, and enjoys copyright protection. Though you can’t copyright the general look of the site, meaning Google can’t copyright a white background with a center logo, you can protect the code that created that work.

The best way to avoid any issues over your source code is to create as much of it yourself as possible and limit any copying to only things that you could trivially reproduce but wanted to save time on. The more it becomes clear where your code came from, the more likely the copyright holder may become upset.

3. Platform Licensing

The days of static websites went out nearly a decade ago. Most sites today are built on top of a platform of some variety or another, be it WordPress, Joomla, Presta Shop or some other software. However, many of these tools have strict and/or unusual licensing requirements and it is easy for designers to run afoul of their terms when setting up a new site.

The most common mistake is installing a purchased application on too many sites; for example, by buying a one-domain license on ThemeForest for an application, but using it with multiple clients.

However, even open source applications carry risks as many designers, in an attempt to keep the site clean, remove attribution lines in the code and files on the server that are required as part of the license.

When using any software to build a site, take a moment to read thorough the license and understand what it means. Follow those terms closely. Developers are constantly becoming more savvy about tracking down those who violate their licenses and even authors that license under the GPL are becoming more aggressive about enforcing their terms.

4. Open Source Blunders

A related mistake comes when web designers use and publish works based on open source code, particularly GPLed code (which includes many WordPress themes) and forget to either retain the license information and/or fail to donate their modified code back to the GPL.

If you create a derivative work of a GPL-licensed one, such as making a GPL WordPress theme a different color, the new theme has to be licensed under the GPL.

If you are unsure of whether your new work meets the requirement for GPL “inheritance”, this 2001 article by Lawrence Rosen (http://www.sitepoint.com/article/public-license-explained/) explains it quite nicely.

5. Dummy Copy

Though the use of dummy text is largely a hold over from the print design world, many web designers continue to use it for various reasons. It can pose a great risk if the dummy copy is pulled from another site. Even if the copy is just for testing purposes, it still constitutes an infringement. It may be unwittingly harming the original authors if the search engines have detected the test site.

Generally speaking, it is best to either use content from the client’s current site if possible, or true lorem ipsum text if it isn’t (http://www.lipsum.com/). Considering that lorem ipsum text is actually more flexible than using articles and content from other sites, it makes sense in nearly every regard.

Be especially careful of scraping RSS feeds for the purpose of filling up a test application or blog, this is especially frowned upon by bloggers and may have your test site mistaken for a spam blog.

Bottom Line

In the end, it is important to keep copyright infringement in mind when designing websites and services. This is especially crucial if your test sites are public facing or may be indexed by the search engines – as you may find your test pages taken down by your host.

However, even if you test solely on a private server, it’s worth keeping these issues in mind so you do not pass along an infringing site to your clients, even by accident. Nothing will sour a relationship with a client faster than them receiving cease and desist letters or take-down notices for content in your layout.

Given the minimal amount of effort that it takes to remain on the right side of copyright law, it doesn’t make sense to even take the chance. It only takes a few minutes to do things correctly but it takes just one copyright infringement complaint to sandbag an entire design career.

This article was originally posted on the ThemeForest blog. We are currently porting over some of the more popular articles to Nettuts+.

 
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  • http://holamiamor.tistory.com Irene

    Good article. Don’t forget.

  • http://bit.ly/cLZXGi Julian

    For images, what I see done by designers is to use an image from a stock photo site with the copyright watermark present when designing a PSD. After the client gives the ok on the work, then the image is then purchased. I assume this is legal since the image is not being publicly used.

    For those who don’t know, http://www.lipsum.com is a great for dummy text. It’s a dummy text generator through which you can generate the exact number of words/paragraphs you want and copy, copyright free.

    • Brian

      Julian,

      Actually, it is not legal, even if you are only sending it to your client. Many people misunderstand this aspect of copyright law. It does not matter whether something is being publicly used or not. To the contrary, if you reproduce an image or text that is protected by copyright, you have committed copyright infringement even if you are the only person that ever sees it. The copying of it is infringement of the “right of reprodution,” one of the 6 main rights in the “bundle” of copyright protection. What you are referring to is the “right of public display,” which is a separate right.

      Another similar pitfall to keep in mind is the fact that presenting a copyrighted work with with the copyright notice and/or attribution to the author does not exempt you from infringement.

      The point is….be careful! Err on the side of caution. The average freelancer can’t afford to defend a copyright infringement suit.

      • http://envexlabs.com Matt Vickers

        I’m pretty sure it is legal as istockphoto.com allows you to download a comp of the image directly (with watermark of course).

        I don’t think they’d allow it so easily if it wasn’t acceptable.

      • Brian

        Matt,

        In the case of istockphoto.com, the site is granting you a license to download a low-res image with a watermark for certain purposes. However, as mentioned, this is the copyright holder (or, in istockphoto’s case, an agent of the copyright holder) allowing you to do so. Absent a license, it is copyright infringement to reproduce a protected image, with or without a watermark.

        Another pitfall to which web designers and developers fall victim to is believing that the concept of “fair use” protects certain actions such as using a copyrighted work only for personal use or for showing mock-ups to clients. The doctrine of fair use is much narrower than the public thinks and is most often misinterpreted.

        Again, the point is be careful and err on the side of caution to avoid unneeded headaches.

      • Feehza

        Another similar pitfall to keep in mind is the fact that presenting a copyrighted work with with the copyright notice and/or attribution to the author does not exempt you from infringement.

        What if i have a website where i write daily about new designs, artworks, etc from the scene and show a pic of this appendant artwork in the newsarticle. I also add the name and and the webseite of the autor to this article. This is still an infringement, right?

      • chris

        ur totally right..

    • web designer X

      If you are running a business and trying to support yourself and you are going to do it successfully you will step on copyright or patent toes at some point (google “Don’t be evil” vs oracle). if your playing football and never get a roughing the passer, late hit, or a passing interference you aren’t playing your riding the bench because you are too passive. This is the reality of the real world.

      If the image owner found out what you were doing you would receive a cease and desist order, by the time you received it you would have already purchased the image or stopped using it.

      I am not condoning these business practices but….

  • http://iamiivo.tumblr.com Iivari Leinonen

    Good article.

    But you could also include fonts in to that list. Now days you see more and more people using @font-face or some other solution for custom fonts and that is also a big question of copyright. It’s easy to take any font you want, convert it to a @font-face kit via fontsquirrel and then use that in your site.

    I’ve talked to a lot of designers and developers and compared to images, I found this to be even more shadier area in web design when it comes to copyrights. And that is sad, ’cause people really should be paid for what they do. :/

    • http://www.zitrox.com Michael

      Right.

      Fonts are very expensive.. For some fonts, there are licence-pricing around 200$.
      If you use someone with font-face or flash (depends on the licence) you have evt. to buy 200$ per visitor, this can be definitily the end of your business.

      Please also be informed.. Most font-creator doesnt allow the conversion in any other system. You are also often not allowed to convert it into a flash file or fontsquirrel.

      The only Way you can be safe is the “Read-Only-Image”.. not nice, but true.

  • Bogaert Dieter

    I agree with the images but for the other parts I think it’s complete and utter b*llsh*t. Why re-invent the wheel, if someone else has already done it?

    This whole web-developper industry is based on making things hard for no reason…

    • http://www.aediscreative.com Christopher

      the thing is, we’re not being asked to re-invent the wheel. we’re being asked to pay to not have to. I think that is fair. Not cheap, but fair.

  • http://www.crearedesign.co.uk Kelly H

    When designing a prototype homepage I always use stock images with the copyright watermark and as said by Julian, I then purchase any images I need when the site has sold.

    I would hate to have a design used without permission, as it seems downgrading to have spent hours creating your design to have someone use it and it only take them half the time.

    I think copyright must be abided by and restrictions will only become tighter as time goes on. Thanks for this interesting post.

  • Brad

    DO NOT use sxc.hu for “free” stock images. Where I work we have been bombarded with letters from Getty Images demanding an insane amount of money to pay for ‘unauthorized’ use of an image we obtained from sxc.hu (which has recently been acquired by Getty)

    • Michael

      Ouh, Getty Images.. This Company is not trusted, please be carefully.

      They deliver Images with Free Templates on CDs with some Magazines and after around one Year they will call all Clients, which use this Template and wants to grab a lot of Money.

      They know, that the Images were free and delivered in free templates with a GPL License.. But they tried it anyway by every client, some pays, some other not. But they tried it all the time.

      I think the whole getty images strategy is built on money demanding.

      • fran

        I have just been sent a letter demanding £600 for using a image that i did not think was copyrighted…i really dont know what to do …..any advice please

  • http://hosting4developers.com Hosting 4 Developers

    Another common mistake is to think that there’s no copyright on images/pages if there’s no copyright message at the bottom (“© 2010 Someone”). That’s not how it works. People who create original content automatically get copyright on it and don’t have to write a copyright message in order to get the copyright.

  • http://joke.appspot.com joke

    you talking very PollofShit

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  • http://www.thomaswornall.com wornall

    Here is a fairly famous copyright infringement for you to study and follow http://www.wired.com/threatlevel/2009/03/ap-blasts-obama/

  • Pharaoh

    Speaking as a photographer first, I can tell you that it’s not legal to steal watermarked images as placeholders, no matter whether the image is being “publicly used”. That basically equates to me stealing a rental car to go to the mall, then renting it to go on a road trip to Vegas (not a fantastic simile, but I haven’t got much time right now to come up with a better one). Just because I pay for the car at some point, doesn’t mean I haven’t committed a crime. In the case of web design it’s less creepy, but it’s still illegal. Seriously, you’re not allowed to download images and use them as desktops for your computer (which is arguable “not public”), why would downloading them and using them for web design be any different?

    • Tripp

      Legal or not, it’s ridiculous to be so nit-picky over something like this. The only 2 people who will ever see or know that you’re using stock imagery with watermarks is you, and the client. They’re only placeholders until the client approves of the design, and then you purchase the images and problem solved. What difference does it make in this situation?. Does it hurt the artist? No. Does it hurt the website hosting the stock imagery? No. It has absolutely no negative effect on anyone, at all, ever.

      • Brian

        Tripp,

        Respectfully, I don’t think you’re right about nobody being “hurt.” It absolutely does “hurt” someone….the copyright holder. Your argument is that only two people are seeing it and you are going to buy it anyway. This argument overlooks several things.

        First of all, have you never found yourself in a situation where the client doesn’t like the images you use in the mock up and asks you to use different images? Do you still go back and buy the images that were rejected by the client? Probably not. However, you have derived a benefit, however indirectly, by using that photos at the mock up stage. If you don’t think this is the case, ask whether you would have been able to conduct the process as you did absent the placeholder photos that you used. I’m not saying that the use of the photos was worth a lot, but the infringement adds up over time. Anytime the copyright holder is losing out on an opportunity to be paid for the use, whatever kind of use, of his or her property, he or she is being harmed.

        Secondly, it isn’t up to you to decide whether a property owner is being nit-picky about his or her property. Ownership is not a fluid concept subject to others’ determinations. If a property owner sets rules for the use of his or her property, it isn’t up to you to decide whether or not those rules are acceptable based on who and to what it extent your use “hurts.”

      • Ricardo Miller

        I completely agree with Tripp i think you are all be nit-picky over this and to answer Brian question why would a client tell you they don’t like the image in the mockup design. Its just a placeholder to see how the site looks. I cannot understand why a client would say i don’t like the image in the mockup for crise sake that’s not gonna be the image comes time when the site goes live.
        all this moaning for nothing yeah we all hate copyrighting but i am pretty sure every web designer have done it at some point no matter how small. so i don’t believe anyone who post comment on this article about not copyrighting

      • Eric

        I completely understand people thinking that it’s being nit picky to have to pay for an image that isn’t used, such as in a mock-up.

        In my view, it’s no different to provide a watermarked image in the mock up (assuming the final version is paid for) than to try on a shirt in the mall before you purchase it.

        The alternative reality is that the photo sites would need to set up “return policies”, just like Walmart. If they are going to make you buy it before you try it, they have to take it back if it doesn’t work.

        The reality all comes down to time, energy, money, and resources, and I can’t think of a single company who would invest the thousands of dollars it would take to “prosecute” the offending “theft” especially if there was every attempt to purchase the product if it was the “right fit” for the project.

        Now… taking the shirt out of the mall and wearing it to the party you’re going to this weekend? Totally wrong… trying it out to see if it works with the pants you’re planning on wearing? No issue.

    • Trex

      Additionally, as a general web-user, if I see a photo I like, I might set it as my desktop. Im not going to inquire about licensing for that. If you really want, instead Ill just set my homepage to your portfolio site. Then every single time I look at the image, it will cost you money (hosting bandwidth costs).

      If youre portfolio site has ads, I guess you will benefit, but what respectable photographer puts ads on their own site.

      • Tripp

        Brian,

        Firstly, very good post, and an excellent rebuttal!

        I have to agree with you on a technical level. I don’t set the rules for other property owners. However, I have every right to say they’re being nit-picky, especially when every time I use one of their stock images in a mock-up, that’s a potential sale for them, which is better than what they had before I showed it to the client. Though, you are absolutely right in the regard that, had I not had access to those stock images in the first place, I wouldn’t have been able to conduct my business as efficiently.

        I guess it comes down to the property owner. What’s more important? A potential sale, or making it so that even using a simple watermarked stock image is just as bad as going to a torrent site, downloading a Zip file with about 10,000 stock images (with that same artist’s work included) and using the real version instead, with no way to prove that it was stolen.

        The way I see it, stock image creators should be embracing the fact we use their watermarked versions with the chance that the full version will then be purchased after the client approves. It seems to me like we’re doing them a favor, but it’s not worth the favor if they’re going to be so touchy about it. Then again, perhaps that’s just me. I’ve never been that stingy with my work. Meh.

        Again, awesome response, thanks for taking the time to reply. =)

      • Brian

        Tripp,

        Your last comment sums it up completely. I was talking about it from the technicality of the legal aspects (I’m actually a web developer by night but a lawyer by day), but you’re completely right about the practicalities of the situation. After all, a stock photo contributor only contributes with the goal of people purchasing their work. They know who the target audiences are (developers/designers) and what the target audience’s methods will be (ie the mock-up process). And let’s face it….a basic truth about stock photography is that the photographs probably aren’t going to generate any return for the contributor via any other means.

        As you say, the way the system is set up breeds the processes that exist between photo contributors, designers, clients and the public. Its through a nice ecosystem like this that we all benefit.

        Nice chatting with you Tripp!

  • http://www.ankinanti.com Ankinanti

    i learn a lot..
    thanks!!

  • hasegawa

    This copyright issue is killing web designer. Why not go back to the era where web just began? No pictures, no styling – just plain texts and links. =)

    Another issue is using stock images for mock design; if it hurts the owner, it hurts the web designer more for buying a stock image that are not used by the clients. I have been advising a lot of my designers friends that if they are so particular about their designs copyright, they should use pdf with security features such as disable printing or opening them in image editing software. Another solution would be submitting low resolution images instead of hi-res original artwork/photograph. Why submitting your work in hi-res and editable format if you are going to cry out loud for someone who is going to steal it?

    Code re-usability is important for programmer and imagine that we must pay for every code we do. It feels like going back to linear programming back in 80s. This is rejecting the OOP concept by all means. No inheritance, no encapsulation and no polymorphism.

    Sorry but this article is really making me upset. Web designers and programmers would have extinct soon if this goes on.

  • Owe

    There are some half truths here that needs to be corrected.

    1. Is HTML copyrightable source code?

    Usually not. Its a markup language to markup copyrighted content. I cant think of any HTML that could be copyrighted, but Im sure there are some exceptions. Anything that is kind of obvious is generally not copyrightable.

    2. Many WordPress themes are GPLed?

    According to this article http://wordpress.org/news/2009/07/themes-are-gpl-too/, all WordPress themes are GPLed whether its stated or not. I dont agree with this view, but its the commonly held view.

    3. Published work based upon GPLed code must be shared.

    Definitely not. The license applies to distribution of the software. Most web developer never distributes anything, therefor the GPL does not apply. The Affero GPL is specifically written to cover this, so I encourage the use of the it whenever possible, but almost none uses it. However, for those developers that do hand their work over to their clients, the only one the developer is bound to give the source code to is the client, even with the Affero GPL.

  • Adam

    Brian,

    If the practice of designers mocking up photos is hurtful to stock photographers, then what alternate practice is helpful to them? Their work was generated specially to use as stock art, to be used in other people’s work. Most professional designers are doing projects for clients, not for themselves. You have to have a some way to display their image as an option to the client. It’s ridiculous to to put such a tight lid on their own work.

    • Brian

      Adam,

      You’re right…contributors put their artwork on sites like istockphoto.com to be used as stock art, but only once purchased. We have to separate what is good/practical for web designers/developers on the one hand, and what the actual state of copyright law is on the other hand. I agree with you that a designer’s job would be extremely difficult if he or she could not mock up sites with low-res watermarked images. But the fact remains that, according to copyright law, the use constitutes infringement.

      Again, also keep in mind that it has nothing to do with whether you show a client or keep it to yourself. Reproducing a copyrighted work without permission is infringement even if nobody ever sees it- refer to my above comment touching on the different rights that constitute a copyright. Showing it to your client vs keeping it to yourself, etc. has to do with the right of public display. Simply downloading the low-res image and putting it into your mock up has to do with the right of reproduction.

      Yes, we are talking nit-picking here and the practical reality is that copyright holders would probably never know of mock-up type actions (or take the time and money to enforce them). The point, however trivial it might seem, is that the protection of copyright law is not tempered by others’ needs to conduct their business.

      At the end of the day, we all know that these practices are going to continue and that, for the most part, not many people will care. I’m sure that many stock photographers would be fine with mock-up scenario as it is intended to lead to more purchases for them. I just think it is good to be informed on the matter and to have a healthy discussion. Code on!

  • http://www.designmango.com DesignMango

    Really interesting tips, thanks

  • http://itvillage.site11.com IT Village

    awasome techniques. thanks for sharing.

  • http://www.metaspring.com/blog/marketing/friday-morning-metabits-oct-1-2010?utm_source=comment Julie Cameron

    Great tips here – I think with a bit of common sense and research you can do pretty well to avoid these issues, but it’s definitely helpful to have an idea of where most problems occur. Thanks!

  • kanye west

    On the WordPress forums there is a posting stating that since WordPress (as the creator and owner of the platform) itself does not require theme developers or users to keep the credit in the footer, any derivative built on the WordPress platform must also follow this guideline and that essentially theme developers are not allowed to force users to keep their personal credits on the site. I thought it was interesting and although there was a lot of debate both ways, there were claims that Matt M, the owner of wordpress, agreed. I probably should include a link to the discussion but I am too lazy to search for it again :)

  • http://www.securityking.com Craig

    Great article on copyright pitfalls for web designers to keep an eye on, so really good to keep these 5 in mind, Thanks!

  • http://www.facebook.com/saha.rudra Rudra Saha

    I find the photo copyright to be a massive pitfall for a starter web designer. I remember when I began designing websites for small business, many clients didn’t realise that you can’t just pull images from Google’s Image Search and implement them on a website.

    NB: For anyone who asks why I am getting a client involved in finding images for my design, that was their response when I informed them I had to find an image with free licensing rights otherwise they would be required to purchase an image for me to use.

  • http://www.integralwebsolutions.co.za/blog.aspx Robert Bravery

    Yeah Copyright is a big issue. Especially with Images and content. These are so easily copied. I try wherever possible to give credit where credit is due.

    I don’t think copying HTML elements breaks this rule, as long as the sum of those element don’t constitute a different work, as you suggest in the copying of whole themes. HTML Elements and CSS elements are all public. BUt how they are formulated together with other elements constitute a valid copyrighted work.

  • http://motivationalquotesns.info/ Robin Ginolfi

    Whoa! I’ve been looking bing for hours in this and that i as a final point found it below!

  • http://loneeaglereview.blogspot.com Charles Hall

    Okay, a few questions about pictures:

    1. If they are public pictures of like the President or a public elected figure (like from a government website for instance), can they be used?

    2. If they come from a website that states that they are “Free” clip art or something, is that okay to use?

  • coolcat

    coolcat was here thanks for the info

  • http://www.webdesigners.nl/ Ecommerce website design

    I will keep in mind when I am going to develop a new website for my client.
    Nice Post.

  • Jose M.

    Good article here .
    Gave nice tips & advice how to avoid these issues & doing it the right way. Explaining that its that its illegal & stealing form others. Also by helping us understand the consequences of copyright infringement.

    But now that there are a lot of amateur web developers & graphic designers, these problems are common abuses of copyrighting. Nowadays a lot of web users use these methods like its just an ordinary thing to do in the web, they don’t realize that they already committed internet crime.

    Hope you can teach this guide to other developers & designers. Thanks

  • http://cirquedumot.com/new-readers/ Susan Silver

    I am pretty obsessed with these proper attribution. I love that web devs & designers offer things under a free licence but often you need to share derivative works the same way. I don’t know how many bloggers that cut and paste code snippets realize this. I feel the writer and developer worlds need to cross more often so people realize that code also falls under a copyright. It is someone’s intellectual property.