I’ve seen the situation waaaayyyy too many times – Creator creates. Creator publishes. Sleazeball steals. Sleazeball makes money from Creator’s creation. It’s a vicious cycle that has caused many small creators to even quit their passion because “it’s no longer worth it.” ßThis is not true. If you love what you do, then it is absolutely worth it. I get it though. You put in hours upon hours of hard work, and the moment you publish your work, someone else comes along and uses it as their own. This post is meant to help you, as a designer and creator, explore the remedies available to you when you see that someone has stolen your design.
Yes, I’m an attorney in the business of making money. However, most of these remedies can be pursued without the aid of an attorney. I typically have my own clients attempt some of these remedies before paying me to go after the sleazeball infringer.
More times than not, infringers aren’t aware that they are infringing upon your hard work. Many brand new entrepreneurs, or those that are trying to take a stab at the small business life, have no idea about copyrights, trademarks, or what infringement even means. This is why it’s best to first educate the person or company that has stolen your design. You can simply send a nice message letting them know it’s your work they are using, your work is protected by a federal copyright or trademark, and ask them to stop using it. If they comply, great. If not, maybe it’s time to pursue another remedy.
DMCA Takedown Notice
Thanks to the Digital Millennium Copyright Act (DMCA), when you find someone infringing on your copyright online, you can make a request to the website owner to have the content removed from the website. I have found this helpful when the infringer does not take down the content on their own after a request. Upon request of the copyright owner, the website owner MUST take down the content. The notice applies to internet service providers, website operators, search engines, and a web host. For my clients, they are most helpful for marketplaces such as Etsy, eBay, Poshmark, Mercari, and Facebook. The infringer may send a counter-notice to the website owner to repost the content, but if the infringer is in the wrong, they usually do not fight it.
Cease and Desist Letter
This is a more formal request than the one made above when educating. You can certainly send a C & D letter yourself, but parties usually take them more seriously when the letter is received from an attorney. This is also a necessary step before suing an infringer. The letters I send for my clients demand that the conduct cease immediately. I also push for a settlement for my clients. With copyright infringement, the copyright holder is entitled to the profits of the infringer, so this is what I also demand in the letter.
This is considered an extreme remedy, and most small business owners don’t even like hearing the L word! It’s intimidating, sure. But sometimes this extreme remedy is a necessity. Small business owners are intimidated by the cost of a lawsuit, but if you have the right protections in place, you don’t have to worry about the cost. I will have a more detailed blog post on this soon, but for now, just know that if you already have a registered federal copyright when the infringement occurs, you are entitled to the cost of attorney’s fees in defending against the infringement and statutory damages. If the infringer does not take you seriously with the above remedies, a federal lawsuit is sure to get their attention.
These are the most common remedies when it comes to copyright infringement. If you would like to explore any of these options for your own creation, please shoot me an email to [email protected]