At some point in this digital age, almost every individual or business in the creative space will discover that somebody has copied them. You may see it yourself, or you may get the stomach-dropping “Doesn’t this look an awful lot like…..” e-mail from a friend. It might be that potential client who said your design “was nice, but wasn’t for us.” It could be a big company with a new shirt/container/advertisement with a strikingly similar photograph. It could be a blog post that . . ., well, you get the idea. When you discover that someone copied something that you created, there are a lot of questions and it’s rarely as simple as “someone copied my stuff!” So here are a few things to consider as you decide on next steps.
First, does your work qualify for copyright protection? Any one who creates an original, creative work of authorship has a valid copyright interest as soon as the work is fixed in a tangible medium of expression. The bar for what is “creative enough” to qualify is low. Very low. Even the mere selection, arrangement, and display of facts in a graph or a telephone book may qualify as a creative work of authorship. However, there are some limitations. Copyright law only protects the expression of an idea, not the idea itself. So while a cookbook focused on chicken sandwiches would be protected, the underlying recipe (and sandwich) is not. Also, words and short phrases like book or movie tittles are not protected by copyright. But yes, the image you grabbed from a Google image search through likely is.
However, as long as you meet have a modicum of creativity, and as long as you didn’t copy someone else’s expression, you likely have a valid copyright. This is true even if you haven’t registered your copyright with the Copyright Office. However, a registration (or pending application to register) is generally a prerequisite for bringing a lawsuit, and can open up additional types of relief if the infringement occurred after the registration of the copyright.
Second, are you the owner of the work? Generally, the author is the owner, unless ownership has been transferred. For businesses, if an employee created the work within the scope of their employment, then the employer is likely the author. The work for hire doctrine can be tricky, so it is best to drill down and confirm ownership before asserting any claim of infringement. If you’re not the author, you may be able to contact the former employee, contractor, etc. and obtain an assignment of the copyright interest.
Third, is the “infringer” really infringing? Copyright law only protects the expression of a work, not the idea of a work. The James Bond franchise has a number of valuable copyright protected works: books, movies, characters, etc. While there are broad rights associated with the franchise, the copyright does not give the owner the ability to claim rights in the idea of a British secret agent. The tough part is locating the fine line between idea and expression. There also a question of whether the “infringer” is making a legitimate “fair use” of the copyright work. Is the copy part of a social commentary on a relevant issue or topic, like gender stereotypes? Could creation of an online repository of shared links, images, and articles a la Pinterest qualify as a fair use? These are important questions to consider when deciding whether to pursue any further action.
Finally, what are your options? You could start with a short email or phone call. Third-parties may not realize something is protected. The “infringer” may happily stop selling/posting/distributing the copied work. An attorney can assist, providing you with talking points, ghost writing a letter, or if you prefer contact the alleged infringer directly. If the copy is on the internet, there is likely a method for you to request that the website/app/hosting service remove access to the infringing work through a Notice of Claimed Infringement. YouTube, Facebook, eBay, and others all have online submission forms. Be aware, however, making wholly unreasonable claims of infringement could lead to the alleged infringer turning the tables. Of course, a lawsuit is an (expensive) option but as noted above, a registration or pending application is necessary to bring a lawsuit. If the work has value (economic or personal), you should consider applying to register the copyright to at least expand your response options, and your potential recovery.
Creative individuals and companies put a lot of time, effort, and money to create something that is valuable to them. When you discover that someone took a shortcut at your expensive, it can be personally offensive and you want to make it stop, now. The law provides an avenue for relief, but unfortunately it often may not provide you with the scope of protection you thought you had. So if you or a client runs across a copycat, hit the pause button. Someone may have “copied your stuff,” but they may not have committed copyright infringement.