What can you do when someone uses your content without permission?
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, this is one of the more common questions I get asked, and it’s universal. People at all levels of experience eventually encounter someone using their material without permission. And when it happens, it’s hard to know just what to do about it.
There are several approaches that you can take, and I’m going to present them in order from least-to-most adversarial.
So you’re going about your business and you discover someone’s lifted some of your stuff… Whatever kind, maybe it’s an article from your blog, or a photo from your website, or maybe it’s something more substantial like a script, book, or what-have-you.
IS IT SOMETHING YOU REALLY OWN?
First, let’s make sure we’re talking about something that actually CAN be legally protected.
You see, intellectual property law only protects certain things. Patent law protects inventions, Trademark law protects brand names, and copyright law protects original expression of ideas. (Not the ideas themselves, and not facts…Those aren’t protected at all).
So, if you’re an inventor, and you’ve got a patent that you think is being infringed… Then you need to contact a patent lawyer… Fast. There’s not likely to be much self-help you can do in this situation, and you can actually hurt your case if you try to work things out without proper counsel.
If you’re dealing with a brand name, a trademark, we have to make sure the alleged infringer is, in fact, creating a likelihood of confusion in the consumers’ minds. That means that if you’re selling shoes, and the other outfit is selling chewing gum, it’s probably NOT an infringement of trademark. But if you’re in the same class of goods or services, or one that’s closely related, then it IS an infringement. First approach here? Well, you might succeed with a casual approach, either a call or a letter to the owner alerting them to your priority rights, and asking that they stop. But unless they immediately do so, you’ll want to consult a lawyer.
Now, if you’re dealing with copyright protected material, how you approach it is going to depend somewhat on the medium.
DMCA TAKEDOWN PROCEDURE
If the infringement is happening online, using a digital information service… Like a website, YouTube, or what-have-you, then you might be able to get the service to take-down the offending material using the DMCA Takedown Notice Procedure. The DMCA stands for Digital Millennium Copyright Act, and provides for a so-called “safe harbor” for services that carry user-generated content, IF they have a procedure for taking down infringing content their users post.
The process is simple, you send them a properly worded DMCA Takedown Notice, and (sometimes this can be done using an online form), that provides the details about the infringing material… And then the service provider takes the appropriate action.
That’s the end of it, unless the user who posted it files a counter-notice, in which case the material gets put back up, and you can then choose to sue for copyright infringement.
ESCALATING REQUESTS TO DEMANDS TO LAWSUITS
But if the infringement isn’t happening online, like if it’s print, or film, or a recording, or so-called “old media” of some sort, then you’re going to have three choices.
- Ask the infringer to stop
- Send a written Cease and Desist demand
- File a lawsuit
ASK NICELY IF IT CAN WORK
Now, I usually recommend following this approach in sequence. Sometimes, people infringe copyrights inadvertently, or just ignorantly. They didn’t know they needed permission. So when a rights-holder calls or writes them and politely asks them to stop the infringement… They do.
But if you skip the “more flies with honey” approach, and jump right to the Cease and Desist Demand (which is sometimes very appropriate), you ARE more likely to get some push-back in response. That just escalates things, and winds up costing everybody legal fees.
CEASE AND DESIST DEMAND
A Cease and Desist Demand is really just a strongly-worded lawyer-letter (or Nastygram) as some folks call them. In it, it declares who the rightful owner is, what’s being infringed and how, and presents a demand for the infringer to take various steps.
I’ve seen steps as simple as “stop what you’re doing and apologize” and complicated steps requiring the infringer to not only stop, but also pay a fee, present accounting records for review, notify its customers, recall offending goods, etc.
The more complex and, let’s face it, expensive, the demands are to comply with, the less likely they’ll do so quickly and quietly. Even when their lawyers advise them to do so.
Remember, I’ve characterized this as a DEMAND. Some people mistakenly refer to this as a “Cease and Desist ORDER”, but unless something comes from a Judge it’s really better viewed as a formal request for compliance. Without a judge, a hearing, and a ruling, it just doesn’t carry the full force and weight of a law.
So if they resist, refuse, or just drag their feet, the next step is file a lawsuit against the infringer.
Now, remember, suing someone means you’ve got to prove some elements.
For copyright infringement, you have to prove the following things:
- You own a valid copyright
- Defendant copied the work in question… Which means you prove that there was both ACCESS, and SUBSTANTIAL SIMILARITY…
- You sustained damages, unless you’d registered your copyrights within 3 months of publication, and so can claim statutory damages.
Oh, yeah… And you’ve got to be prepared to demonstrate why the alleged copying ISN’T Fair Use. But that’s an explainer for another day.
So, there you have it.
If someone is using your content without your permission, here are the steps.
- Make sure what you’re claiming is yours really IS, and is protected under the law.
- Ask nicely, if there’s any chance that doing so will get the desired result.
- If it’s an online infringement, use the DMCA Takedown Notice Procedure
- Have a lawyer send a Cease and Desist Demand
- File a lawsuit.
Unfortunately, if you own a piece of intellectual property and it gets infringed, you pretty much HAVE to do something about it. Otherwise, there’s a doctrine of law that can actually strip you of your rights. So don’t sit on your hands. If you don’t protect your stuff, the law won’t either.
That’s it for this Asked and Answered explainer.
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I’ll see you again soon.
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