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.” This 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.
It should be noted that you do not need a Federal Copyright Registration to pursue these remedies. It certainly helps, and you may be entitled to more damages than you would be without a registration. However, your work is protected by Federal Copyright Laws the moment your work is published.
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 work. 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. The notice applies to internet service providers, website operators, search engines, and web hosts. 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. Most websites have their own process for a DMCA notice. If not, you can send an email notifying the website of the infringement and that you want the content removed. DMCA notices are often a quick and easy way to have the content deleted when the infringer does not cooperate with a friendly request.
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 the letter more seriously when 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 monetary settlement. A copyright owner, without a federal registration, is entitled to actual damages suffered due to the infringement. This can be hard to quantify, but you should certainly demand that the infringer produce an award of profits for their infringement.
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 may not have to worry about the cost. If the infringer does not take you seriously with the above remedies, a federal lawsuit is sure to get their attention.
Infringement is an occurrence that happens too often, but as a savvy business owner, you can take matters in to your own hands and eliminate attorney fees as long as possible.
Andrea Sager is a Service Provider on The Boutique Hub. As a boutique owner herself, Andrea knows the ins and outs of the legal issues boutique owners face daily. Andrea began her legal career in a large law firm but quickly realized her real passion was working with small business owners. In 2018, Andrea finally opened her own firm to help small business owners.
For more information or to contact Andrea, see her Service Provider Profile!