A Writer’s Guide to Copyright, Part 2

[Editors’ note: This is the second in a two-part post on copyright protection. We here at Hazel & Wren have not studied law, nor have any experience in copyright protection claims or suits. The following is simply an overview of what we’ve learned in our research, and is meant only to provide a starting point for your own. For in-depth information or specific guidance, it is best to get help from an actual lawyer or other professional well-versed in all things copyright.]

In the first installment of “A Writer’s Guide to Copyright,” we covered basic preventative measures. But honestly, there’s no real way of stopping someone from copying your work online without your permission. So what do you do when it happens? Read on, friend.

Someone infringed upon my copyright! What do I do?

Start small. Sometimes all it takes is a little nudge and the offending content will be taken down. Find a way to contact the person, and send them a polite email, asking them to remove the content in question. Chances are, they’ll take it down without any further action on your part.

If a “pretty please” doesn’t work, you’ll have to graduate to a formal cease and desist letter. In your letter, explain exactly what content you have issue with (and where it is), outline your demands for removal, provide a deadline and explain what will happen next if they don’t meet your demands. If you’ve never written a cease and desist letter before, do some research and find good examples to model yours after. It’s best, by the way, to not bluff your way through a cease and desist letter. Be prepared to follow through with everything you say.

I didn’t get the response I wanted. Now what?

Time to utilize the Digital Millennium Copyright Act (DMCA), put into U.S. law in 1998. The “Safe Harbor” provisions in the DMCA basically gives web host providers a free pass in copyright infringement lawsuits, as long as they take action when someone notifies them of an infringement. This means that if you notify a web host of offending content on one of their sites, they are obliged to remove it unless they want to risk being implicated in the case. You have to notify them with a proper DMCA complaint, though: in writing, and including specific information (see the DMCA excerpt below). You can’t just say, “Yo, take down my stuff,” and expect them to comply.

(3) Elements of notification.

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

 

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

You can find examples of a proper DMCA complaint easily online; Jonathan Bailey over at Plagiarism Today has an example (you’ll find an example of a cease and desist letter there, too).

Web hosts often err on the side of taking every DMCA complaint seriously, immediately taking the site in question down. It therefore being relatively easy to get a web host provider to remove sites, there have been times where sites were wrongfully accused and taken down. In these instances, there are provisions for a counter-notice, in order to have the falsely-accused site put back up. Again, there are specific guidelines outlined in the DMCA for writing a counter-notice, so do your research.

No dice. Can I take ’em to court yet?

Yup. That’s all you’ve got left, really. And for that, you need an attorney. Try and find a lawyer that specializes in arts or intellectual property matters. Before you can file a suit, the work in question has to be registered for copyright protection. If you only get around to registering the work after the fact, you are eligible for awards of actual damages and profits only. If you registered the work for copyright before the infringement, or within three months after publication of the work, then you can additionally receive statutory damages and attorney’s fees.

If you really don’t know where to start, you might try contacting your local or state arts council for guidance. You may also find the Volunteer Lawyers for the Arts (VLA) a helpful place to begin. Based in New York, VLA maintains a legal hotline you can call for advice, and lists a directory of arts organizations around the country on their website.

Have you had to deal with anyone stealing your work before? Were you able to resolve the situation? Is there anything you would have done differently?

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Digital Millennium Copyright Act (DMCA) United States Code
Intellectual Property FAQ on EFF
Copyright and DMCA on ChillingEffects.org

For further information:

United States Copyright Office: registration forms, and tons of copyright info, including this overview
Online Copyright for Writers (PDF): free, easy-to-understand guide by Freelancewriting.com

For our non-US friends:

World Intellectual Property Organization: International intellectual property system, by United Nations
Canadian Intellectual Property Office
Intellectual Property Office: United Kingdom
Australian Copyright Council
Copyright Council of New Zealand