When you own an online business or provide services, it can be frustrating when someone uses your content without crediting or compensating you. The content you write, record, capture, and conceptualize can take hundreds of hours to complete–only to be published under someone else’s name, word-for-word, without your consent. (Because who’d say yes to that?) Not only does it hurt your ego, but it hurts your bank account, too. As an attorney, this should come as no surprise, but here's my two cents: if there’s a chance your work will get ripped off by a competitor for profit, it’s worth protecting. Unfortunately, things like this happen all the time in the online space, and as your business grows, you should always be aware of the possibility. When the unthinkable happens, what should you do next? Here’s a few things to consider if you catch someone copying your work:
The difference between plagiarism, copyright, and trademark infringement
Plagiarism happens when someone uses another person's work without crediting them for it–more often than not, it's a word-for-word, copy and paste kind of situation. Plagiarism is easy to spot because the writing may lack a credible source. More often than not, it'll sound extremely familiar–almost as if you'd written it yourself. Chances are, you did.
Copyright infringement is a broader term that covers any use of material that infringes on someone's “artistic, literary, or intellectually created works.” Online course material, photographs, music, paintings, books, recipes, and so much more can fall into this category. Trademark infringement, on the other hand, covers the unauthorized use of intangible goods that distinguish you from your competitors. Think along the lines of business names (like Patagonia or Boxed Water), slogans, taglines, brand marks, logos, and more.
Even if your content hasn't been copied and pasted, it's important to make the distinction between a complimentary resemblance and an insincere competitor. As it turns out, a fellow business owner who is acting unethically can give you more headaches than you can handle. Listen to your gut: If it feels like someone is acting out of integrity by exploiting what you've created, they probably are.
Filing a DMCA Takedown Notice
The Digital Millennium Copyright Act (DMCA) is a standardized, legal way to control copyright violations that occur on the internet. If any owner of content detects unauthorized use of their work online, they can send a DMCA Takedown Notice to the website owner or the internet service provider.
In order to file a DMCA takedown notice, you'll need to submit the following information.
–Your work's original URL (such as the blog post URL)
–The website where your work was taken from
–The point in time that the infringement began (i.e., when you first noticed it)
–A statement saying that you've got a good faith belief that the use of your copyrighted material is not authorized by law, which means you believe this is not permitted under copyright law.
There are other options besides just filing a DMCA takedown notice, including contacting the infringer and their hosting company directly with a request for removal and asking nicely, but firmly, if they can take down the content on their end. The steps outlined above are really the bare minimum required to be able to file an effective complaint with Google.
In some cases, it can be difficult to determine whether a use of your copyrighted material is legal or not. If you're wondering if someone is violating your copyright, you should always consult an attorney. It's always a good idea to seek legal advice from a licensed attorney before filing a DMCA takedown notice–just to cover your bases.
Writing a cease and desist letter
A cease and desist letter is just like it sounds. It's a legal document informing the person responsible for the infringing activity to stop. Your letter should include your name, address, and other contact information, as well as a description of what's been infringed and where to find it. The best way to write a cease and desist letter is to follow up with a phone call or in-person meeting to tell them about the infringement. If you want to pursue legal action, your letter should include clear instructions on how the copycat can avoid more trouble down the line.
If a Cease and Desist Letter feels too "official," or you're not quite ready to go there yet (totally understandable!), you might consider sending a personal note to the copycat via email or DM. Be firm but empathetic–you can never go wrong by giving the benefit of the doubt. Messages like these are never easy to write, and if you're struggling to find the right words, download The Entrepreneur's Email Swipe Copy for Sticky Situations for some suggested verbiage to address potential copyright infringement.
From here, if the copycat refuses to comply with your request–or no action is taken at all to improve the situation–it's time to consult with an attorney for next steps. It's a situation I wouldn't wish on anyone, but your legacy, reputation, and hard work is worth the discomfort.
Protecting yourself from copyright infringement in the future
Whenever you share your work with the world, you run the risk of others believing they can take credit for it. Consider it the cost of doing business in the online era. In fact, the more your business grows and scales–the more eyeballs there are on your work–the greater the chances are that it'll happen. Don't let that keep you from sharing your genius with the world. Here's what you can do to protect yourself, your ideas, and your work from copycats in the future:
Be proactive and register your intellectual property with the government. When you copyright and trademark your brand assets, you'll have the option to take legal action if need be. It’s a fairly straightforward process to register your work with the government, but it’s often more complex than it seems. It typically involves an online application, a small fee and some correspondence with the appropriate public offices. That said, you should know that it can be a complicated process and it is recommended that you seek an attorney to help you file your trademark application and handle whatever happens next.
If you stumble across someone who's copied your work without proper authorization, credit, license, or release, send them a Cease and Desist letter, or file a DMCA Takedown Notice online. It's also worth contacting the powers that be at Facebook, Twitter, or wherever the content is hosted who may be able to help enforce the takedown requests under their terms of service agreements.
Remember that your response may vary depending on the severity of the violation. For example, if someone copies a few paragraphs from your latest blog post and publishes it as their own, a polite email asking them to remove the infringing material may be enough. If someone plagiarizes significant content pieces, however, you may need to take more drastic measures.
Here's the good news: With the help of an attorney, you don't need to get bogged down in the red tape of protecting your intellectual property. Professional help will ensure you’re following the correct steps, not to mention the mental bandwidth you'll be saving. That’s valuable headspace you can pour back into your business so you can focus on what you do best.
Whatever path you choose, I’ve got something to help:
Visit The Artists' Lawyer online contract collection to pick up a Cease and Desist letter template or the DIY eBook, How to Trademark and Protect Your Brand. You can also reach out to our sister law firm, East & Bay, for a custom quote to handle the trademark and copyright law for you.
Don't hesitate to reach out with questions, concerns, or counsel–The Artists' Lawyer is here to support you and your growing business, now and forever.