As an online entrepreneur or freelancer, your creative work is often the foundation of your business.
With so much of our work now online, it's easier than ever for it to be stolen, or at least used without permission. Discovering that someone has stolen your work can be one of the most infuriating things that can happen as a business owner.
In this blog post, I'll take you through the steps you may wish to consider taking when you find out someone has stolen your work.
What is Copyright?
Copyright is a form of legal protection that automatically applies to your original works of authorship the moment they are created and fixed in a tangible form, such as written text, images, music, or videos. Copyright does not apply to ideas or concepts. There has to be an actual work created.
It gives the creator of the work exclusive rights over how their content is used. These rights include the ability to reproduce, distribute, display, or perform the work publicly, as well as to create derivative works based on the original.
As the copyright holder, you have the authority to control who can use your work, for what purposes, and under what conditions. Importantly, for the purpose of this blog, copyright also grants you the right to take legal action if someone uses your work without permission.
What is Copyright Infringement?
Before you take any action, you need to determine if your work has actually been infringed upon. Copyright infringement happens when someone reproduces, distributes, performs, publicly displays, or creates derivative versions of your copyrighted work without permission.
What is the Test for Copyright Infringement?
One key question often arises:
How similar must the two pieces of work be to constitute copyright infringement?
Well... it depends (cue eye roll, I know).
For copyright infringement to apply, the work must be "substantially similar." This doesn’t mean it has to be a word-for-word copy. Rather, the core or essence of your work must be mirrored in the infringing content. If it really reflects and feels pretty dang close to your original work, such that someone else might mistake it for yours, you may have an infringement case on your hands.
On the flip side, if the work is simply "inspired by" or "slightly resembles" your original, that won’t typically meet the threshold. It needs to be more than “eerily similar.” Ultimately, if your case went to a judge, they would look at the total concept and feel of the works in question to determine if infringement has occurred.
How to Deal with Copyright Infringement
Once you’ve determined that your work has indeed been infringed upon, it’s time to take action - or not. You have no legal obligation to do anything if you feel like it's not worth your time and energy. But if you do, read on.
Collect Your Evidence
First things first: document everything. You need to build your case with solid evidence that demonstrates the infringement. This includes:
- Taking screenshots of your original work as well as the copied content on the infringer’s site.
- Recording dates of publication to show you created the work first.
- If available, gather metadata, such as timestamps, that prove when you uploaded or published your content online.
Creating a strong paper trail will be critical in proving ownership of your work and showing that it has been illegally reproduced.
Make Sure there is actually Copyright Infringement
As mentioned earlier, the work needs to be **substantially similar** to your original creation for it to qualify as copyright infringement. If it’s a blatant copy of your work, you likely have a case. But, if there’s only a loose resemblance, it may not be enough to proceed.
Take time to assess the situation, and if you’re unsure, it may be helpful to consult a copyright lawyer to see if you truly have a case, or if you're causing more legal headaches for yourself by making false accusations. A legal opinion from a lawyer or attorney specializing in copyright infringement is always a good idea.
Send a Kind but Strong Message with Evidence
Now that you’ve gathered your evidence and determined that your work is being infringed upon, it’s time to reach out to the infringer directly. Sometimes it doesn't hurt to start with a strong-but-kind-message to the individual or company, providing them with the evidence of infringement and politely requesting that they remove the infringing content.
You may find that the infringer may not even realize they’ve crossed a line and will remove the content after receiving this message. A strong initial message may save you the time and energy of escalating the situation further.
Send a Cease and Desist Letter
If the infringer ignores your initial message or refuses to remove the infringing content, it’s time to take things further with a cease and desist letter. A cease and desist is a formal demand that they immediately stop using your work.
You can either send this letter yourself or, for a stronger impact, have a lawyer draft one and send it on your behalf.
Send a Takedown Notice
Under the Digital Millennium Copyright Act (DMCA), website operators and service providers can require website or internet platforms to take down content at the request of the owner of that content. While this is a US based law, a receipt of a DMCA take down notice often has the same affect around the world. In Canada, we have a similar regime called the "Notice and Notice" regime - which you can use to bypass the person who posted your work, and instead ask the website host to remove the work.
Protecting Your Work Online
To avoid copyright infringement in the future, make sure you have a plan in place to protect your creative work. Some key steps include:
- Registering your copyright: While copyright protection exists the moment you create the work, registration can provide additional legal benefits, particularly if you need to sue for infringement.
- Watermarking your content: If your business revolves around visual media, adding watermarks can deter unauthorized use.
- Using Contracts and Clear Terms of Use on your Website: Ensure your contracts clearly outline ownership of any intellectual property you create for clients.
The longer you're in business, the more likely it is that you'll be the victim of copyright infringement. If it happens to you, remember to stay calm and clear-headed.
If you find yourself in this situation and want to act fast to protect your work - I created a Copyright Infringement Enforcement Bundle which goes into much more detail about how to assess whether your copyrights have been infringed and also gives you templates you can customize and use for sending a DM or email to the infringer, as well as a DMCA Takedown Notice Template (for the US) and a Canadian 'Notice & Notice' Template. This Guide gives you a step-by-step action plan, as well as tips on how to find exactly who to send your Takedown Notice to.
Leave a comment