In a notable ruling last month, a California district court ruled that the HTML underlying a custom search results page of an online advertising creation platform is copyrightable.

In Advertising FZ-LLC v. Netseer Inc., No. 14-3883, 2016 U.S. Dist. LEXIS 3784 (N.D. Cal. Jan. 12, 2016), the plaintiff, an online contextual-advertising service provider, brought copyright infringement claims against a competitor for allegedly copying the HTML from a custom-created search results page, for the purpose of creating its own custom online advertising offering.  Plaintiff argued that its copyright claim is supported by the guidance published in the revised edition of the Compendium of U.S. Copyright Office Practices (Third Edition) (Dec. 2014) (“Compendium”).

The Compendium states that while a website’s layout or look and feel is not copyrightable subject matter, its HTML may be copyrightable.  [Note: As discussed in a prior post, the look and feel of a webpage might, in certain circumstances, be protectable trade dress under the Lanham Act.]

The defendant countered that plaintiff’s HTML consists solely of uncopyrightable Cascading Style Sheets (CSS), which renders plaintiff’s copyright registrations invalid.

Generally speaking, HTML is the standard markup language used in the design of websites and establishes the format and layout of text, content and graphics when a user views a website by instructing his or her browser to present material in a specified manner.  Anyone who has clicked on their browser’s dropdown menu to reveal the elements of a web page has seen the array of instructions contained between the start tag <html> and closing tag </html>.  Web developers also use CSS, which, according to the court, are merely methods of formatting and laying out the organization of documents written in a markup language, such as HTML. There are different ways to build CSS into HTML, and although CSS is often used with HTML, CSS have their own specifications.

The Copyright Office has stated that because procedures, processes, and methods of operation are not copyrightable, the Office generally will refuse to register claims based solely on CSS. See Compendium, §1007.4.   However, the Copyright Office will register HTML as a literary work (but not as a computer program because HTML is not source code), as long as the HTML was created by a human being and contains a sufficient amount of creative expression. See Compendium § 1006.1(A).  As the court explained, the fact that HTML code produces a web page (the look and feel of which is not subject to copyright protection) does not preclude its registration because “there are multiple ways of writing the HTML code to produce the same ultimate appearance of the webpage.”  The court held that portions of plaintiff’s HTML code minimally met the requisite level of creativity to be copyrightable.

Ultimately, however, the court granted the defendant’s motion to dismiss the copyright claims on procedural grounds based upon the plaintiff’s failure to properly assert, beyond conclusory allegations in its complaint, how the defendant accessed plaintiff’s HTML code.  The court also found that the plaintiff’s complaint also failed to list every portion of the HTML code that the defendant allegedly infringed.

As noted above, a website’s HTML is readily viewable through standard browsers. Thus, it is not uncommon for a developer to “take a peek” at the HTML of other sites.  This case suggests that even though a website’s look and feel may not be copyrightable, in some cases the underlying HTML may be. Thus, web developers should be careful as they are building sites to avoid copying copyrightable subject matter.

As the court granted plaintiff leave to amend its claim, we will continue to watch this case as it presents important copyright issues for e-commerce providers.