The other day I was talking to a non-lawyer friend of mine – a smart, successful guy – and he started telling me about this new website he had set up and how he was thinking of patenting the site. As an IP lawyer, I tend to cringe when I hear laypeople bandy about terms of art in ways that don’t make any sense, so of course I asked him what he meant, and whether his website performed any kind of magic hocus-pocus that could even hypothetically allow it to fall within the realm of patentable subject matter.
It did not.
It was merely your standard, cookie-cutter, off-the-shelf WordPress theme with no modifications or alterations, no unique HTML code and no embedded processes. The site did not even contain original photographs, since the web designer he had hired contented himself with stock photos purchased from Getty. While they were nice photographs, and the site itself was attractive, there was nothing about it that would cause a lawyer to make haste for the patent office.
After looking at his site, I told my friend I did not see a basis for a patent application, so he switched gears and asked if I could trademark the website, or copyright it. While both of these options are possible – and, in fact, trademarking a URL has historically been fairly common – of late the PTO has been turning away dot-com trademark applications like unwanted junk mail. And although copyrighting the content of a static website is technically feasible – all one has to do is send off a copy of the text with a check to the copyright office – as a practical matter it does not serve much purpose. Under prevailing U.S. law whatever you write and publish to the web is automatically protected by copyright, and formally registering that material with the government merely gives you the right to sue any subsequent infringer for statutory damages. While that may be enough to justify registration for some folks, usually it is just a waste of $35.
The one exception to this would be if you created a website using a new language (e.g.,YOU-NIX). However, unless there is something special about the code which you fear will give rise to copycats or make it attractive to the BitTorrent crowd, there is very little likelihood that your source code is going to wind up being sold at underground swap meets. If it does make its way into the public domain, then you can still register your copyright and sue for infringement. The after-filed registration merely limits your available remedies, and forces you to prove the factual issue of when the material was created. When I explained all of this to my friend, he shook his head and muttered something about the opacity of the law. Then he started telling me about a great investment called derivatives. Ten minutes into his convoluted explanation about subordinated notes, second tranches, and slicing-and-dicing sub-prime mortgages I gave up and mentally departed the scene. Even if it does have a few flaws and inconsistencies (e.g., the FACE trademark), intellectual property is still far more logical than investment banking.
The only derivative I want to concern myself with is “derivative use.” The analysis may be obscure, or obtuse — it may even be opaque — but unlike financial derivatives the theory behind it remains constant. And you can take that to the bank.