Protecting Your Company and Its Website: Forge A Strong Terms of Use Statement

Your Terms of Use is a critical legal and business document that limits your liability for errors, omissions, and any other risks, and provides strong intellectual property (IP) protections. We’re finding that it’s often misunderstood and underused by businesses, so we’re sharing some ideas with you about how you can get the most benefit out of your website’s Terms of Use. 

Getting To Know Your Website’s Terms of Use Statement 

Your website’s Terms of Use should be treated as a living document that is regularly reviewed and updated, not as a one-and-done checklist item.  It can also be an educational document, not just a legal one. It can be powerful to explain what you’re protecting and how it is protected.  In addition, the Terms of Use statement should be an agreement with end-users to ensure that they follow certain rules of behavior if they are to continue accessing the website: by using the website, the user thereby agrees to comply with and be bound with the Terms of Use.  

But even a well-crafted Terms of Use Statement can only provide so much protection. You should consider technical protections for your most important IP in addition to the legal protections in your Terms of Use, and we offer some suggestions below.    

Key IP Protection Clauses in Your Website Terms of Use Statement 

• Establish Ownership: Your terms should clearly state who owns the intellectual property on your website. This may seem obvious, but it can get complex.  

• For IP that your company has produced, your terms should state the name of the entity that owns the IP. This becomes complicated as corporate structures become more elaborate. 

• For licensed IP, you will need to consult the terms of your license to the IP itself to determine the necessary type of attribution, if any. Attribution may be required for free images or other content (e.g., Creative Commons images), as well as for paid licenses via stock image services or from other content-creating entities.  

• Just because you modify someone else’s IP does not mean that you can use it yourself without their permission and without appropriate attribution. A work based on one or more pre-existing works is known as a “derivative work” (https://www.copyright.gov/circs/circ14.pdf) and can be subject to copyright protection by the owner of the pre-existing work(s).  

• Define your IP: Expressly outline what your IP includes. IP on websites can include all written, audio, and visual content, service marks, trademarks, logos, images, or other intellectual property that is displayed on the website. 

• Prohibition clauses: Consider restricting the use of the content on your website so that it can’t be copied, distributed, displayed, modified, or sold without your permission. For example, a user can be precluded from reproducing, distributing, using, or creating derivative works from any content on the website without obtaining prior written consent from your company. 

Key Company-Protection Clauses in Your Website Terms of Use Statement 

• Disclaimers and Limitations: Your Terms of Use statement should include a general disclaimer and limitation of liability, including warranties regarding the content of the website, its accuracy, or its functionality. The website is typically provided “as is” and “as available,” without any express or implied warranties, or words to that effect.  

• Common Sense Measures: You should take common-sense measures to protect what finds its way onto your website. 

• If possible, exclude unlicensed third-party content from appearing on the website.  

• Or, if your website includes third-party content, you should take other precautions. 

• If you allow comments or reviews, publish third-party ads, or otherwise publish third-party content on your website, you should highlight that you do not own it and exclude liability for the content. You can state that anyone submitting content to the website is solely responsible for such content, and that the submitter agrees the submission does not violate the rights of any third parties. 

• You can also assert that anyone who submits content to the website grants your company a non-exclusive, royalty-free, worldwide, and perpetual license to use, reproduce, modify, and display such content.  

• If your website could potentially include copyrighted content that’s uploaded by others, you can include a compliant DCMA Notice (Digital Millennium Copyright Act Notice). Please let us know if you believe that your website (and thus your business) would be at risk for displaying third-party copyrighted content without permission, and we can assist with drafting an appropriate DCMA Notice. 

• You can explicitly retain the right to remove any objectionable content that gets posted and to block users who post such content. You may wish to define the kind of content that would be considered objectionable, such as violent or repulsive content, hateful or abusive content, unlawful offensive, threatening,  libellous, or defamatory content, and/or obscene or sexual content (many examples of such “Offensive Conduct” definitions are available, and you can customize as best fits your company’s situation).  
• Legal Formalities: Your Terms of Use Statement should share information about governing laws and regulations and the consequences for breaching the provisions outlined in the Terms of Use. You can also add clearly define how disputes will be resolved (arbitration or mediation, for example).  

Drafting Tips: How To Write Your Terms of Use More Effectively 

It’s important to write your Terms of Use in a way that a typical website user can easily understand and see how the terms apply to them. Copyright protections are widely misunderstood, so explaining how users can and cannot use your website IP in language they can understand can be effective.  

Here are some quick tips for making the Terms of Use a more effective document:  

• Write using clear and concise language. Pro tip: Use writing apps to grade the readability of your Terms of Use and aim for grade 9 or 10 readability scores.  

• Be specific: overly vague or general terms are harder to enforce. Get specific, especially for key clauses (such as your IP definition clauses), even if you must resort to a bit of legalese.  

• But in general, avoid legalese.  

• Use examples if helpful and technology where appropriate. For example, instead of just saying logo, link to it.  

Going Beyond Legal Terms: Use Tech to Protect Your IP 

Above and beyond the legal protections in the Terms of Use, consider using technical mechanisms to protect your valuable IP on your website.  

Here are some examples:  

• Use watermarks on your imagery. You can overlay visible watermarks over your videos, content, or graphics to make it more difficult for others to use them. There are also invisible watermarks that embed hidden data, allowing you to prove the IP came from your website even if it is altered.  

• Right-click disabling makes it harder for users to cut and paste content from your website. This can be coded into your website.  

• Reverse image search tech crawls the website to identify where your copyrighted images are published.  

If you want help protecting your website and its intellectual property, reach out to us. Our IP attorneys would be happy to work with you. 

• Intellectual Property