Many creative professionals are aware that we must protect ourselves by contracts and by being copyright conscientious. However, few are aware that aspects of their creative business may be warranted trade secret protection. Dr. David Himelstein states in his website, “[t]rade secret law can be used effectively to protect web sites and computer software.” (Himelstein, 2006) It is not advised to rely purely on trade secret protection though; websites and software would benefit best from copyright protection and patents in conjunction to trade secret.

Dr. Himelstein’s article further discusses the portions of a website or software applications that are warranted trade secret protection. According to the article, website and software in general is too broad a term to use in trade secret protection. “[T]rade secret protection is applied separately to graphics, source code, object code, algorithms, programs or other technical descriptions, data flow charts, logic flow charts, user manuals, data structures, and database contents.” (Himelstein, 2006)

It is important to note that if you sell your software application that your product is no longer protected by trade secret; patent and copyright, however, will remain intact. However, if you use this special software strictly in-house, then you may still qualify for trade secret protection. Be sure to have anyone who is in contact with the software sign a Non-Disclosure Agreement as not to have your trade secret exposed.

Websites are a bit more difficult to protect via trade secret. The front end source code for web sites are visible to anyone who knows you can access the code by going to View>Source in their web browser. You can use a source code scrambler, but these are not always easily rendered in all browsers and generally always fail validation. The back-end or server side code which is not visible to the website user may be protected by trade secret. However, most websites can be reversed engineered by technically savvy people. Once the trade secret was discovered, despite the method, the protection is up aside from copyrights.

If you create a website for a client, the graphics may no longer be protected by trade secret but the process in which you create the images can be a trade secret. For example, one of my clients requested that I design a few downloadable wallpapers for their visitors. The client is the Australian Ghost Hunters Association. I created a process for making a digital ghost to include in the photo manipulations. The image I upload to the web site will not be protected by trade secret, however my process only viewable in my Adobe Photoshop PSD file is. The PSD is not seen by anyone but me, therefore I would be granted trade secret protection. It is highly unlikely that a JPEG would be reversed engineered in order to see my process; however, someone could easily develop an identical process purely coincidentally. Despite the method, if my process was reproduced my trade secret protection is gone.

Source

Himelstein, David B. (2006). Web Sites and Software as Trade Secrets. Retrieved from the Website of The Web/Computer Law Home Page of David B. Himelstein, B.S., M.S., J.D. on October 29, 2008 at http://www.himels-computer-law.com/trdscrt.htm

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