Intellectual Property

Someone's Using My Copyrighted Materials! How Can I Stop This Infringement?

By Brian Farkas, Attorney
Options to fight infringement of your copyright range from writing a cease-and-desist letter to filing a lawsuit.

If you are a content creator—for example, a painter, a sculptor, a graphic designer, or an architectyour control of your work is probably important to you. Imagine how you would feel if your original lyrics that you posted on your blog were "borrowed" by a famous singer, who then made millions singing them. Or imagine how you would feel if your novel was photocopied by a bookstore and sold, so that you didn't receive any royalties. Or imagine how you would feel if your artwork was copied onto mugs and t-shirts and sold in stores without your permission.

In all of these situations, you would feel cheated, not only emotionally but also economically. How should you deal with someone who has infringed on your copyright?

What Types of Works Can Get U.S. Copyright Protection

Before you can calibrate your reaction to infringement of your work, you must understand the scope of your copyright protection. Copyright protection derives from the Copyright Act of 1976. As set forth in 17 U.S.C. § 102, copyright protects "original works of authorship fixed in any tangible medium of expression... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

What does this mean? Essentially, that anything you create using some minimal degree of creativity, which you put into a form that can be seen or touched, as with a painting on canvas, a drawing, a piece of computer code, or a book, will qualify for protection under U.S. copyright law.

Section 102 of the law enumerates eight categories of copyright-eligible works, including literary works, musical works, dramatic works, choreographic works, pictorial works, audiovisual works, sound recordings, and architectural works.

As you see, the types of works that could qualify are very broad. Yet copyright does not attach to everything. The Copyright Act also makes clear that protection does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

In other words, you cannot claim copyright over abstract concepts; the idea for a novel is not protectable, only the finished written product. So if you thought of a really clever idea for a TV show, then see that NBC has produced a substantially similar show next season, you cannot sue NBC unless it actually took your script.

Holders of copyrights have certain exclusive rights to their work under 17 U.S. Code § 106. Those include the exclusive right to reproduce, perform, and distribute the work. In practice, this means that if you hold the copyright on your illustration, for example, then someone else cannot simply photocopy it turn it into a greeting card without your permission. This sort of conduct would constitute copyright infringement and subject the infringer to damages if you were to sue.

How Registering Your Copyright Helps Protect It Against Infringement

Creators hold copyrights in their works automatically. That is, you technically have a "copyright" as soon as you fix your idea into a tangible medium, for example by writing down a poem into your notebook.

However, it is difficult to truly have legal protection over that work unless it is formally registered with the U.S. Copyright Office, the federal agency charged with overseeing the administration of copyrights. Registration with the Copyright Office is required in order to sue someone for infringement. The work can be registered even after the infringement has occurred, though the best practice is to register the work as soon as it is created.

The good news is that copyright registration is fairly straightforward for the vast majority of applicants. You must pay fees to the Copyright Office for each registration, per the published fee schedule. Fortunately, these fees are relatively nominal. Most applications will cost less than $100 in total (2018 figure).

To begin the registration process, go to the Registration Portal of the Copyright Office's website. It allows you to select the specific type of creative work you seek to register, with such choices as literary works, visual arts, photographs, or performance. The registration process is slightly different for each of these genres, but the basic principles are the same. Each of the portals on the website will lead you to the Electronic Copyright Office (known as "ECO" for short). In ECO, you will fill out the formal copyright application. Most of the required information is self explanatory. You will need to provide your name, address, and information about the work, as well as a copy of the work itself (perhaps on CD or DVD).

Writing a Cease-and-Desist Letter

When you see that your copyright is being infringed, your first instinct may to be hire a lawyer and fight aggressively in court. This may not, however, be the most effective (or fastest) approach. Instead, many instances of infringement can be resolved by a strongly written cease-and-desist letter. Also referred to as a demand letter, this is simply a formal letter notifying an infringer of its wrongful conduct and demanding that it be stopped.

Your demand letter should outline the basics facts of the infringement. What does your copyright cover? What conduct did you observe from the infringer? On what dates did you observe the conduct? Be as specific as possible. You can attach a copy of your Copyright Office registration (if you have one). You can also attach photographs or websites that demonstrate the copyright infringement.

End your cease-and-desist letter with a specific demand: Stop the copyright infringement within a certain number of days. There should be a deadline for compliance, ideally a narrow one, such as two weeks. The tight deadline will hopefully motivate the infringer to take the letter seriously and act fast.

Print your cease-and-desist letter on your business's letterhead (if you are asserting your copyright claims on behalf of a business) and carefully proofread it. Send it via a service like Federal Express or UPS, so that the recipient realizes that the contents are important. You can read more about tips for how to write an effective cease-and-desist letter.

Finding a Copyright Lawyer and Initiating a Lawsuit

Unfortunately, cease-and-desist letters do not always convince an infringer to stop using copyrighted work. What can you do if the infringer simply ignores your letter? Here, you have two choices: You can either ignore the infringer and hope that he or she eventually stops, or you can fight the infringer in court.

A lawsuit is a formal proceeding in which you ask a court to award money damages against the infringer as well as grant a court order to prevent future infringement. (Such an order is known as an "injunction.")

To file an infringement lawsuit, you should consult an attorney—but not just any attorney. Attorneys, like all professionals, have specialties. To fight copyright infringement, you will want to speak with an attorney with experience in intellectual property law, specifically copyright law. Copyright has its own internal conventions, legislation, and technical jargon. Consequently, a trusts-and-estates lawyer or real estate lawyer may not be the right person to handle this type of dispute.

Once you identify an attorney, have an initial consultation. Bring all relevant documents, including a copy of your copyright registration and any information you have about the infringement (such as screenshots of the website or samples). See what solutions the attorney suggests, and whether the attorney's demeanor and approach seems like a match for your needs.

What options might you pursue through your lawyer? An initial step might be to have your attorney call or write to the attorney for the infringing company or individual. Often, an infringer who sees that an attorney is involved will begin to take the matter far more seriously.

Assuming your lawyer's attempts at negotiation do not work, the next step may be copyright litigation. Your attorney will need to work with you to draft a document known as a "complaint," which initiates litigation. It lays out all of your factual allegations and causes of action. Lawsuits over copyright infringement must be brought in federal district court (not state court) because the Copyright Act is a federal statute.

The complaint will be filed with the court and served on the infringer, meaning that the infringer will know about your action. Often, this alone will prompt a party to consider settlement. But if the infringer does not settle, you will need to proceed with the litigation process, which can sometimes take about two years, depending on the nature of the issue and the court's schedule.

Assuming you "win" the lawsuit, you can be awarded various money damages to compensate for the copyright infringement, including various statutory damages spelled out within the legislation. You can also obtain a court order to prevent the infringer from engaging in further infringement of your copyrighted work.

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