[Intro Music] This is Office Talk with Annette Stepanian.
Thanks for being here. I can’t believe it’s November. I don’t know where the year when I really feel like we were just celebrating New Year’s. But lo and behold, we are in November, which can be a scary time because the Year is coming to quick end. And most of us are scrambling to accomplish all of our goals and resolutions. And maybe some of the projects that we had set out for ourselves for the year.
November is actually shaping up to be a pretty busy month for me. But that’s all been by design, because I want to have an opportunity to connect with you guys. I love doing the podcast, I love talking to you guys every week. However, sometimes it feels a little weird, because it’s just me talking and I would love to hear from you guys and actually have an opportunity to connect with you. So what I decided is, every Tuesday in the month of November, I’m going to be jumping on in my facebook group doing a Facebook Live. So every Tuesday at 11am PST, that’s Pacific Standard Time. I’m gonna just jump on, we’re gonna chat, we can talk about law, we can talk about business, or the latest episode of This Is Us. And I don’t know if you’re watching it, but I love that show. So I hope you join me, you can go ahead and request to be invited to the Facebook group by signing up at annettestepanian.com/join. And if you’re already in the group, just mark your calendars and I will see you every Tuesday.
I’m also going a little nutso this month and doing four webinars. I have two coming up this Thursday and Friday for my event and wedding planners all about the pro tips for setting up contracts for your event planning business. And then I have two more coming up with some of my really good friends. Jessica Stansberry, who is a tech guru in my mind. We are going to be doing a webinar all about rocking your website. So both from the tech and legal perspective. What you need to know when you’re building out your website.
And then I am going to be joining forces with my friend, Amy Northard, who is a CPA for creatives and entrepreneurs. And we’re going to be talking all about hiring. So these are going to be questions about what is an independent contractor what is an employee? We’re going to be talking about your tax obligation. So we are going to answer your questions about 1099 and W9s and all that great jazz. So if you want to sign up, go ahead and do so over at annettestepanian.com/freewebinars.
So on to this week’s question. I get a lot of emails from you guys and I see a lot of posts in different Facebook groups talking about what to do when you find out that somebody is copying your work without your permission. This can take the form of let’s say you’ve developed a course or you’ve written a book and somebody has completely lifted that content and repackaged it and is reselling it or reposting it somewhere. It could also take the format of let’s say you’re an artist or an illustrator, and somebody has taken your illustration and is making products out of it and selling it on Etsy. It really runs the gamut.
But first some assumptions that we need to make.
First is we’re assuming that this work that you’re alleging is being infringed or copied without your permission is actually something that is eligible for copyright protection. Remember, we’ve talked about this in a previous episode. Copyright law protects things that are kind of these creative, unique expressions that fall under certain categories of work. So for example, let’s say you have a painting of the Eiffel Tower. Now, you can’t be the only one who has the right to paint a painting of the Eiffel Tower. However, the unique way in which you paint the Eiffel Tower on a painting, now, that’s something that is potentially protected under copyright law. This is where working with a lawyer who is experienced in copyright law can help you make that determination of what is something that is truly protected under the copyrights.
What I’m going to be sharing with you are just some general guidelines to give you a lay of the land of just what your potential options might be. I really recommend that you talk to a lawyer if you ever find yourself in this situation, because there’s so many factors and nuances that might be applicable to your situation.
With that in mind, the first thing I want you to do is gather the evidence. So whatever proof you have that this person is using your work without your permission, pull it together. Maybe in an online file or maybe your hard copy file. Take screenshots, whatever it is just put it together.
In the same vein, I want you to also put together the evidence that you are at the actual copyright owner. So anything that shows that you are the original creator of the work. Maybe you know, it’s an Instagram post from you know, five months ago that shows that you just created this work. Whatever it is start gathering all that evidence together.
The next thing I want you to do is to stop and ask yourself: “What is it that I want? Do I want the infringer to stop using my work? Do I want them to pay me for the use of my work? Do I want them to give me credit? Or is it some combination of those three, such as give me credit and pay me for the use of my work.”
This is important because before you contact the infringer, you want to know what you’re going to ask of them. Because this is an opportunity for you to turn a potentially ugly situation into one that could maybe lead into a partnership. So keep that in the back of your mind as you move forward.
Once you’ve gathered the evidence, and you know what you want, the next step is to contact the infringer. Now, you can do this on your own or you can contact a lawyer and the vehicle in which we do this is usually something we call a cease and desist letter. This letter informs the alleged infringer that you are the owner of that copyrighted work. It describes the nature of their infringement and what remedies you’re going to pursue if they continue to use your work without your permission. Oftentimes, this is enough to get somebody to stop using your work.
However, be prepared that if the alleged infringer position is that it is not infringing your copyrighted work, then you might be getting yourself into a little bit of a legal battle. So be prepared for that. Really understand how far are you willing to go to get this person to stop using your work. If the copyright infringement is living somewhere on the internet, so for example, somebody has taken your photography has created a print off of it and is selling that print on Etsy, you can contact that online service providers, so in this example, Etsy, and file what’s called a DMCA takedown notice. It’s a form that gets filled out and you can usually find it in that website’s community guidelines or Terms of Service. And basically, the online service provider is not there to determine who in fact, owns the copyright. They’re just there to remove any potentially infringing material off of their website.
So going back to the example, let’s say you find that somebody is using your photograph as a print and selling it on Etsy without your permission, you could file a DMCA takedown notice. And Etsy will look into it and potentially remove that listing. It’s not 100% solution, but it is a step in limiting the unauthorized distribution of your work on the internet.
If creating content or work that is potentially eligible for copyright protection is a big part of what you do. I want you to start thinking about whether or not you should be investing in registering this copyright with the US Copyright Office.
So for example, let’s say you are investing a lot of time, or resources or money into a product that is going to be maybe a signature product for you, or is a big part of your revenue stream. It may be worth registering that copyright with the Copyright Office. There are a lot of benefits to registration. Now we all technically know that we own the copyright, the moment your original work takes a tangible form. So maybe you’re wondering, okay, now so why should I register my copyright with the US Copyright Office, then?
First off, registration with the US Copyright Office creates a public record of your copyrighted work. It in theory puts people on notice. So they can’t claim that they were not aware that the work was copyrighted.
Next, in order to sue someone for copyright infringement in federal court, you must have or be in the process of obtaining a valid federal copyright registration.
If you register the work before or within five years of publication of the copyrighted work, it creates a presumption that the copyright is valid, meaning that you as a plaintiff don’t have to prove that the copyright is valid, it’s a given.
Next, if registration is made within three months of publication of the work, or at any time prior to an infringement of the work, the copyright owner is entitled to seek what’s called statutory damages and attorneys fees in federal court. The right to statutory damages is really important, because sometimes proving what’s called actual damages and lost profits can be very difficult. Therefore, having the ability to collect statutory damages is a right that you want to preserve.
There you go. I know the answer to this question is not 100%. But that’s just the way the law is. There are a lot of different factors and circumstances that we need to take into consideration and it’s not always so clear cut. However, I hope it’s given you some background. So if and when you come across a situation, you’re a little bit more informed about what your available options are.
Friend, thank you so much for being here. And I look forward to seeing you in the Facebook group or on a live webinar, or maybe both. Have a wonderful day and I look forward to talking to you soon.