Category Archives: Entertainment Law Asked & Answered Podcast

VIDEO:

https://firemark.com

TRANSCRIPT:

Got a copycat? What  you can do to stop them.

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

So, you've been making great online content,  It’s getting views, listens, downloads, and then you discover it.  Some copycat out there has been watching closely, and when one of your pieces does well, they make their own content piece on the exact same topic.  They give it the same or a very similar title, and their piece starts siphoning off your audience and search results.

It’s frustrating and demoralizing.  Their actions are rude, immoral and unethical, but is it illegal?  Can you stop them?  Stick around and find out!

OK… so, what these copycats are doing is absolutely immoral and unethical.  But does it violate the law?
That is obviously a tricky question, and it's usually best to talk with a lawyer who can examine your specific facts and advise you accordingly.  But here’s some information that may help you get started.

Analyzing a situation like this requires us to look at several different areas of law. Specifically, we’re talking about possible claims under copyright law, trademark and unfair competition, and maybe even some kinds of contract-related claims.  So let’s dive in.

First, Copyright law.

Copyright protects original works of expression against unauthorized copying, adaptation, distribution, performance and display.

But that’s the trick. It’s not the ideas, or concepts, or information contained in your content that’s protected by copyright… only the particular way that you express those things.   That means that someone else can come along and tell the same factual information, present their own take on the ideas or concept without it amounting to copyright infringement.

But that doesn’t give them complete freedom to copy the way you’ve gathered, assembled, organized and presented things.  If your approach to those things is original (and not just an alphabetical, chronological, or similarly routine way of presenting the material) then you CAN claim copyright there.

If the original elements of your work are what’s being copied, then you have a couple of options:
The first and probably the simplest, is to file a copyright claim with the service that’s hosting the infringing material.
The Digital Millennium Copyright Act, or DMCA gives copyright owners a way to get material taken down quickly, since the services that host third parties’ infringing content have to comply with properly presented takedown requests, in order to maintain their “safe harbor” protection against being sued for those infringements.  So look for the service’s takedown procedure… usually in the Terms of Service or Privacy Policy.  

But a couple of things to know.  First, the takedown notice you send has to be ‘properly formatted’.  So if the service doesn’t have an online complaint form, you need to make sure your notice complies with §512 of the US Copyright Act.  

Fortunately, I’ve got a template that can help with this.  Visit EasyLegalTemplates.com  for that and more Easy Legal Forms and Templates

Second, The alleged infringer CAN file a counter notification and get the material put back up, and that starts a clock ticking for you to sue them.  AND, if you’re found to have abused the DMCA takedown, without considering possible defenses, (like Fair Use, which I’ve covered in another video… the link is in the description below) (https://firemark.com/fairuse)) Well, it’s rare, but you could be liable to them for damages and attorneys’ fees.  So, think it through carefully, or talk to an attorney before filing your claim, just to be sure.

Another option is to send the infringer a cease-and-desist letter.  This is really just a letter, usually written by your lawyer, outlining  the fact that you own a copyright, that you’ve discovered their infringement, and demanding that they stop, and take it down, with some threat of further legal action if the infringer doesn’t comply.  Sometimes the letter also includes a demand for payment. 

But here’s the thing:  These letters don’t often accomplish the desired goal.  Sometimes they lead the infringer to  stop, apologize and even pay, but far more often, in my experience, they instead either ignore the letter, or write back refusing to comply.  Some folks even publish the letter on social media and call out the copyright owners and lawyers as bullies. and this just forces your hand, so you’ve got to make good on your threat to sue.
And, sometimes, the recipient of this kind of cease and desist letter will hustle on down to the courthouse and file a lawsuit asking the judge for “declaratory relief” (on-screen).  That’s a court ruling that their work does NOT infringe your copyright.  And then, you could actually wind up paying their attorney fees.

And finally on the copyright front, you could land the first blow with your lawsuit for copyright infringement… but before you file, you have to register your copyright with the US Copyright Office.  So this can take some time before you even file the suit.  And,  lawsuits are very costly, and take years to resolve. So that’s not always a very good option.

The next kind of legal claim you might consider involves trademark and unfair competition law.  Trademarks and Service-marks are distinctive words, phrases, designs and symbols that serve as identifiers that separate the goods or services of one source or supplier from others in the marketplace.  So, if you’ve got a distinctive title for your podcast or video series, or channel, you might be able to protect against others coming along and adopting confusingly similar titles for their shows, series or channels.  

That means filing an application for trademark registration, which can be costly and time consuming.

Unfair competition, though, doesn’t depend on there being a registration of any kind.  These kinds of claims can arise both under federal law and state law provisions.  Basically, they involve claims for ‘false designation of origin’. So… theoretically, if someone is passing off your ideas, structure and frameworks as their own, you might have this kind of claim at your disposal.

Again, your options are to send a cease and desist demand, or just file a lawsuit.  Unfortunately, there’s not an equivalent of the DMCA for this kind of claim, BUT some of the platforms DO accept complaints through their systems and will sometimes take action accordingly. That’s certainly worth a try, if it’ll resolve the issue.

Another approach, relies on contractual claims,  so it won’t apply to all situations, but if you’re a course creator, coach, or info products seller, you CAN include confidential nondisclosure language (and covenants not to copy) in your agreements with your students, customers and clients.  Then, if they violate those provisions, by copying your course, materials, frameworks, methodology, or whatever, you’ve got some recourse, and could collect damages and attorneys’ fees.

But this won’t solve the problem of the copycat who finds and mimics your publicly available content, because there’s no contract involved there.

Now, all of this has covered some of the legal approaches to dealing with these copycats.  But really,  I think the best approach to this kind of situation is to reach out to the copycat directly on a personal level.  No threat, no recrimination, just appeal to their sense of ethics and morality, and just  politely ask them to stop, maybe with a suggestion of an alternate approach that they could use.  I’ve found that the ‘catch more flies with honey’ approach gets you satisfaction more often.  

But if they’re not going to play nice, then you can escalate to some of those other strategies.

One thing I do want to caution you about though… I often hear victims of these kinds of copycats say that they plan to go public about it.  They’ll Call out the evildoer and embarrass them.  But that’s a dangerous game.  You see, you could open yourself up to claims of defamation and tortious interference.  And that puts you on the receiving end of a lawsuit.  And believe me that won’t be any fun at all.

Obviously, you have a right to speak your mind about the unethical, immoral and wrongful behavior you see and experience, but it’s risky to call people out specifically.  So please just  be very careful and thoughtful about what you say and how you say it.

So that’s it for this session of Asked and Answered.  

If you’re looking for the forms and templates I mentioned earlier, visit EasyLegalTemplates.com

Thanks for watching.  See you again soon.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.