Fighting Back Against Infringement: How to Protect Your Work
by Theresa Christine Johnson on 12/04/2017 | 5 Minute Read
By: Katie Lane
Finding out that someone is using your work without your permission can feel like getting punched in the stomach. The wave of nausea is overwhelming, immediate, and usually coupled with a strong desire the hit back as quickly as possible. Should you find yourself in this unfortunate—but sadly not uncommon position—here’s how you can protect yourself and your work as a designer.
Go To Your Corner
It may seem like an unnecessary first step, but before hitting back you need to figure out if the other person is actually using something that belongs to you.
Copyright is the law that prohibits others from using your creative work without your permission. As the copyright owner, you get to say who can use your work and how they can use it for as long as the copyright lasts (and in most instances, that’s going to be until 70 years after you die).
A copyright applies to work as soon as it’s created. As soon as you capture your unique expression in a tangible form, wham!, there’s a copyright. In most situations, that magically-appearing legal right belongs to the person who created the work. But there is an exception that is particularly relevant in the world of design: work for hire.
With a work for hire, the copyright belongs to the person who hired the creator to make the piece. Luckily, work for hire only applies in two very specific situations: when you create work as an employee, and when there is a contract that specifically says what you’re creating is a work made for hire. If either of these two situations apply, you can’t stop someone else from using your work, because you don’t own the copyright.
Let's Get Ready to Rumble
Once you’ve confirmed that you own the copyright to the work that’s being used, you’re ready to get back in the ring.
If the person has used your work online, the take down provisions of the Digital Millennium Copyright Act (DMCA) are a good first step. For example, if someone incorporated your design into a poster and they sold that poster on Etsy, a DMCA notice tells Etsy that you’re the copyright owner of the design and you haven’t given the seller permission to use your work.
Once Etsy receives your notice, it is legally compelled to take down the infringement as soon as possible.
The same is true for most web platforms you can think of: Facebook, Tumblr, and yes, even Café Press. The site will notify the user why the post or webpage was removed, and the user has the chance to object—but in most instances this takes care of the issue and stops the infringement.
Generally, websites make it easy to report misuse by having a form you can fill out. If you’re having trouble finding out how to report copyright infringement on a particular site, do an internet search for the website’s name + “copyright infringement” or “DMCA.”
But what if the person isn’t using Etsy to sell the poster that features your work, what if they’re selling the poster directly from their own site? First, make sure they aren’t hosting the site through a service like Squarespace or Wix (if they are, send your notice to the platform). If they’re not on a platform, you’ll need to figure out who the website’s “internet service provider” is and send your notice there. Often times the ISP will be the company hosting the website, but a quick whois search will ensure you send your notice to the right place.
Because a take down notice is such an effective jab, only use it when the issue is true copyright infringement. If someone criticized your design in an article or blog post, that’s considered a fair use of your work and a DMCA notice isn’t appropriate.
The DMCA take down takes care of the immediate problem, but you won’t want to stop there if the person has caused significant harm or is immediately reposting your work under a slightly different name. If you haven’t already, register your copyright with the US Copyright Office at copyright.gov. The US Copyright Office is the only true registrar of copyrights, so don’t get swayed by a private company promising to protect your work. Even though you automagically get a copyright when you create a unique design, registration is what establishes the legal connection between you and the work. If you need more of an incentive, you have to register a copyright before you can sue for infringement. Registration costs between $35 and $55 in most cases, and if you do it within 90 days of publishing your work, you’ll be able to request statutory damages and have the infringer pay your attorney’s fees if you win in court.
With your registration filed, you can send a cease and desist letter, either on your own or with the help of an attorney. A cease and desist letter tells the person that you own the copyright in the work they’re using, that they don’t have your permission to use it, and what you want them to do next. Depending on the situation, simply stopping the infringement may be enough. If what you want them to do is more complicated than stop using your work—for instance, if you want them to pay you for what they’ve done—it’s best to work with an attorney. If you can’t afford an attorney, see if there is a Volunteer Lawyers for the Arts chapter near you, or if the local law school offers a small business clinic.
You can’t prevent someone from misusing your work, but by using the built-in protections of copyright law, you can do something about it when it happens. By registering your work and knowing how to take swift action when you spot an infringement, you’ll be able to fight back when an infringer strikes.
Katie LaneKatie Lane is an attorney who helps artists and freelancers protect their rights and get paid fairly for the work they do. You can read her blog at WorkMadeForHire.net and follow her on Twitter at @_katie_lane.