By Ashley Kenney Shea
Special to the Legal
Few people would compare the descriptions of everyday products we buy online like furniture and electronics to traditional “creative works” like books, photographs or music. Yet a new case out of the Midwest suggests that indeed, even the very humdrum descriptions that businesses create to sell products online may be entitled to copyright protection, just as long as they are ever-so- slightly more than purely factual descriptions. What is more significant is the fact that business owners who copy such descriptions could be personally liable for the infringement.
In Asher Worldwide Enterprises v. Housewareonly.com, the plaintiff, an online retailer of discount commercial kitchen equipment, accused Housewaresonly.com, a competitor, of copying and pasting AWE’s product descriptions, feature listings and promotions onto its website. The defendant was owned by a husband and wife team named Stuart and Marcia Rubin, who, over the course of a few years, appeared to have copied and pasted hundreds of AWE’s descriptions in order to sell their own comparable goods.
After the case was filed, the Rubins abandoned their website and liquidated their corporation, the original defendant. In response, the plaintiffs added the couple to the case individually. The Rubins filed a motion to dismiss, claiming they could not be liable for the infringement of their corporation. In deciding the issue, the court cited the U.S. Court of Appeals for the Seventh Circuit’s opinion in Dangler v. Imperial Machine for the proposition that “It is when an officer acts willingly and knowingly — that is, when he personally participates in the manufacture or sale of the infringing article … or when he uses the corporation as an instrument to carry out his own willful or deliberate infringements … that officers are held jointly with the company.” Since the company had only two employees, Stuart and Marcia Rubin, the court said there was sufficient evidence that the owners personally participated in the deliberate infringement and they could be personally liable.
The case raises two areas of caution for business owners: (1) unprotected “factual information” for purposes of copyright infringement is very narrowly construed, so that even mundane product descriptions on the Internet may very well be considered protectable “creative works” under the law; (2) and courts can “pierce the corporate veil” and hold corporate officers personally liable for copyright infringement if enough evidence exists that the officers personally and willfully participated in the infringement. Business owners must avoid the temptation to cut corners and write their own copy on their websites. If they do not, they may face serious damages for infringement if and when copied materials are discovered.
Griesing Law advises businesses and nonprofit organizations on cost-effective strategies for navigating the new gTLDs. Contact a member of Griesing Law’s intellectual
property and new media team, Dina Leytes ([email protected] or 215-732-3924), Kate Legge ([email protected] or 215-618-3722) or Ashley Kenney Shea ([email protected] or215-501-7843).
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