“They say imitation is the sincerest form of flattery, but sometimes being copied doesn’t feel very good.
When I was young, my little sister loved to copy my outfits. One time during a vacation, I had to change three times because she kept changing her outfit to match mine. I finally thought I had gotten away with expressing my individuality in a denim-on-denim outfit when my sister and I both got in the car with unmatching clothes. Turns out my mom had secretly conspired with her and brought her an outfit to match mine, which she promptly changed into in the car. Now, of course, she is the way more fashionable sister and I steal from her closet all the time. Having your work copied in a business setting feels particularly icky. You’ve worked hard to design your piece of art or literature, and someone else shouldn’t get to take credit or make money from your creativity. Luckily, the law agrees. Copyright law protects original works of authorship, which includes things like literary, musical, architectural works, and motion pictures.
So what can you do to protect your business and stop copycats?
STEP 1: REGISTER YOUR WORK FOR COPYRIGHT PROTECTION
Copyright protection exists automatically the moment the work is created. But you’ll want to REGISTER YOUR COPYRIGHT so that you can sue under the federal copyright statute and be eligible for statutory damages and attorney’s fees if you’re successful in litigation.
STEP 2: NOTIFY THE INFRINGER
It never hurts to ask nicely. When you notice a person or company is copying your design, you can reach out to them and educate them that they are using your work, and that it’s protected under copyright law. It may be an innocent mistake, in which case they will probably just take it down.
STEP 3: ASK THE HOSTING WEBSITE TO TAKE THE INFRINGING MATERIAL DOWN
If a company is infringing on your work on a website or photo-sharing platform, under the Digital Millennium Copyright Act, you can reach out to the service provider and ask that they take the infringing material down. Note: the website is motivated to do this because they do not want to get sued. Read more about the DMCA takedown process HERE.
STEP 4: HIRE A LAWYER TO SEND A CEASE AND DESIST LETTER
Nobody likes hiring a lawyer. I get it, you’d rather spend your money on a pair of Louboutins. Or if you have a kid who steals your money, on groceries. You can write this letter yourself, but since the object of a cease and desist letter is to scare the copycat into stopping their behavior without you having to pursue a costly lawsuit, you’re better off ponying up the money now.
If they don’t listen…
STEP 5: BRING A LAWSUIT
If the person/company stealing your work is still refusing to take down the infringing material, you may bring a lawsuit if your work is registered. Lawsuits can be expensive (like 10k+ to start) so it’s important to know what you’re able to gain. Under the Federal Copyright Act, remedies include an injunction (taking down the infringing material), damages, and attorney’s fees. You’re either able to recover your actual damages and any additional profits of the infringer, or you can elect statutory damages, which range from $750 to $30,000. When the copyright owner can prove that infringement was committed willfully, the court may increase the award of statutory damages to up to $150,000.