X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
This was a recent posting on an intellectual property discussion list: “Our IT department is doing a remake of one of our websites and is pushing to ‘frame in’ outside resources. When a person visits one of our web pages and selects a link pointing to an online resource, our server will create a web page with our masthead and menus, request the page from the outside source, and put the outside resource on it. The effect is that our logo and banner appear to be a part of the outside resource. The tech is arguing that the return path is important because we might lose our users if this is not done and that pop up windows are annoying.” Well, are you allowed to frame other Web sites on your own? There’s no clear answer, but it is probably safest not to try. Framing may put you at risk for a lawsuit under at least two different legal theories: copyright infringement and unfair competition. The theory for a copyright infringement claim is that the framed Web site will not look on the screen as the owner intended, both because new material — the frame — is added to the original work and because the layout and arrangement of the items on the framed pages will be different, because of the different shape and size of the display area for the framed page. The argument is that the site with the new framing is a “derivative” work, a type of copying that is only allowed with permission of the owner of the copyright in the original work. Some argue that the “framing” is just that, putting a frame around an existing work, in the same way that someone can put a frame around a painting without risk of copyright infringement. No one knows for sure whether this would be a successful argument in court, because even in the non-electronic context — where illustrations were cut out of a book and applied to ceramic tiles — the courts split on whether it was an infringing derivative work or innocent framing. Cases that might have clarified the issue in the Internet context have all settled, so that there is no guidance on how a court might eventually decide the case. Another potential problem might be a trademark or unfair competition claim. The gist of this type of claim would be that consumers are confused about the true source of the Web page content, or that the framer is trading on the renown of the framed page for business. The most widely known lawsuit on this theory involved an Internet news aggregator, TotalNews, who framed others’ content on its own Web site with the TotalNews identification in the frame, and, of course, advertising. TotalNews was sued by a number of news outlets, including CNN, The Washington Postand The Wall Street Journal, but the case settled shortly after it was filed. Microsoft’s Hotmail, though, is an example of one company’s solution to the unfair competition claim. Hotmail frames browser windows that are launched when a user of the “Hotmail” e-mail service clicks on a hypertext link contained in an e-mail. Hotmail opens the link in a new browser window that contains a banner with the Hotmail logo, but that also states, “You are visiting a site outside of Hotmail. Close this new browser window to return to Hotmail.” This clear identification makes it difficult for anyone to claim that the viewer might think that the content was Hotmail’s own. Some Web sites force the removal of any frames or force the launch of a new browser window when visited. Just because it’s possible to prevent framing, though, does not mean that it’s okay to frame a Web site if the site has not used technological measures to prevent it. It would all still come down to whether the framer infringed the copyright or confused consumers about the source of the content. Given the uncertain state of affairs, it is probably best to avoid framing altogether. You should instead advise a client to have the viewer simply depart the site entirely for the linked site, either immediately orthrough a gateway affirmatively informing the viewer that he or she is leaving your site, or have your link launch a new browser window for off-site content. This will prevent infringement claims and protect you, also, so that you are not blamed for content that you may not want associated with your good name. Michael Cantor and Pamela Chestek are attorneys at Cantor Colburn (www.cantorcolburn.com) in Bloomfield, Conn. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.