Stopping Copyright Infringement: Five Practical Steps

You are a copyright holder, and someday this will probably happen to you (if you don't believe that you're a copyright holder, read this): You're checking a blog or maybe flipping through a magazine, and a sudden rush of recognition will flood your senses. "That's my work" you'll say to yourself, "who said they could use it?"

(Your actual internal dialogue may vary).

The answer, in most cases, will be "nobody." Copyright laws are poorly understood and there is still a common misconception that if you find something on the internet, then it must be free to use. Of course you know that isn't the case; you put valuable time and effort into creating your work and you're darn sure not going to let this infringer pilfer it for free. So now what? How do you get him to stop?

Before you do anything rash, take a deep breath and assess the situation. The law is probably on your side, and you are likely to at least get the infringement to stop, especially if it is online. But anything you do now can affect your ability to get relief in court if it comes to that, so you'll want to consider the following points in order to protect your rights and stop the wrongdoer.

(1) Don't delay. Copyright, like most law, has a statute of limitations. If you don't assert your ownership rights fairly quickly, you could lose your ability to enforce them (at least against the infringer in question). Many people tend to avoid confrontation, but you need to fight this urge. By taking time to assess and assert your rights up front, you'll be more likely to get the result you're looking for and you'll be able to move on with your regular business more quickly.

(2) Make a plan. Ask yourself, "What do I want to get out of this?" You may be perfectly happy if the infringer simply stops infringing. Or you may want to get as much money as you can out of them. You may even be willing to let the use continue so long as you get proper attribution and a link back to your website. As you determine your ideal outcome, however, you'll want to consider some things in order to realistically evaluate your wishes:

• How strong is your negotiating position? If you're looking for money damages you'll be able to play a much stronger hand if you've registered your work with the U.S. Copyright Office than if you haven't, and you'll be in better shape if you have an established market for your creations than if you don't directly profit from them. Remember, though, that copyright law strongly favors copyright holders, so even if you're not a professional you may still have a solid position.
• Who is the infringer?  You're probably not going to get a 17-year-old blogger to do much more than remove the infringing work from his site. And while you may think you can get a huge payment out of that big corporation, know that they'll probably fight you every step of the way. You'll also want to consider whether the infringer is a current or potential customer--he obviously likes your work, so maybe you could turn a bad situation into an opportunity.
• What is the nature of the infringement? If someone has lifted your work wholesale and is profiting from the infringement, you may take a different approach than if only a small portion has been used in a low (or no) profit setting. You should also consider whether the infringing use is so minimal or otherwise innocuous that it would qualify as "fair use" and preclude recovery altogether.
• How much effort do you want to expend? Obviously, the less you ask for, the better the chance that you'll get it. Sometimes the time and effort you spend fighting infringement could be more profitably used for other work. As with anything, pick your battles wisely.

Regardless of your wishes, taking the time to think about them up-front will help you make better business decisions about your overall approach to the problem.

(3) Document your case. If you eventually need to go to court to enforce your rights, you'll want to make sure you have preserved evidence of the infringement. For physical infringement that means keeping a copy of the infringing work, and for online infringement it means taking screen captures of the website so that you have the evidence within your control. Also retain all records of communication between you and the infringer, including summaries of any phone calls.

(4) Make contact. This is the hardest part for a lot of people, especially those who are naturally adverse to confrontation. My preferred approach is to draft a simple letter that states the basics: (1) I'm the copyright owner, and I can prove it by showing you X; (2) you infringed on my copyright by doing Y; and (3) to make things right, you must do Z. I think it is best to keep it simple, cordial, and direct. Don't apologize or otherwise show signs of uncertainty, and don't overstate your position.

I urge people to avoid a too-aggressive tone in this initial letter. While you want to be firm and direct, try to avoid language that could trigger a "flight or fight" response in the infringer. Most people initially deserve the benefit of the doubt; they wouldn't ordinarily steal or break the law and they are plenty embarrassed to be caught infringing. By appealing to this sense of embarrassment, you can often get your issues resolved quickly. If you immediately put the infringer in a defensive position, however, then he'll have a tendency to either avoid the issue entirely or fight you every step of the way. You can always start with a warm tone and turn up the heat if you aren't getting the reaction you want, but it is difficult to cool things down if your first letter comes in like a flamethrower.

This type of letter is also an area where consulting briefly with an attorney can provide real value. While hiring an attorney to draft the whole letter for you could take an hour or more of billable work, it may take only a third of that time for a lawyer to review something that you've written. Using an attorney in this way can provide you with valuable insight, and you'll have someone who is up to speed on the matter should you need additional legal advice. Be sure to find someone with experience in copyright law, and agree on the scope and cost of the legal work upfront and in writing.

(5) See what happens. In my experience, most people will at least take steps to stop doing whatever it was that infringed on your copyright. Unfortunately, many infringers don't think they should have to pay you any money once they've stopped using your work. If you've made your plan as described above, then you'll already have a sense of how hard you're willing to fight for payment in this situation.

A few people are willing to pay, or at least negotiate with you on a payment amount, once you establish your copyright in the work. If you find one of these people, count yourself lucky and be reasonable in your negotiations.

Some people, however, will ignore you altogether. While this can be frustrating, you still have some recourse in many situations. If the infringement is online, then you can file a DMCA complaint with the infringer's ISP, web hosting company, or even with Google or PayPal to forcibly remove the infringing work or shut down the infringer's ad revenue or payment processing (look at the terms of service for the relevant company for instructions on filing a complaint). If the work is in print, you can contact distributors or others to halt further dissemination. Use caution, however, in any of these approaches; if your copyright claim is illegitimate of overreaching, then you could face legal action for interfering with others' business activities. When in doubt, it is best to check with an attorney first.

Considering these five points should help you successfully shut down most infringement of your copyrights, but your specific situation may vary. If you come across an especially recalcitrant infringer or are seeking a high-dollar damages payment, you may want to seek professional legal advice to discuss your position and tactics.

Disclaimer: This article may not be current, accurate, or complete at the time you read it. Furthermore, the article's content should be construed as information only and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney, and by reading this article you have not entered into an attorney-client relationship with its author.