Copyright Infringement & The Takedown
Have you registered a work under U.S. Copyright Law only to find out that a different company or organization was copying your work and selling it for a profit?
Whether you have experienced this or not, here's some steps that you should take.
Make sure that your work has the copyright mark attached. This illustrates to the world that your work is protected.
If you notice someone using or copying your work without authorization, it's essential that you - or your representative - send what we call a DMCA notice to takedown the material that's infringing on your legal rights.
If there's no response or action on the other party, you need to consider filing suit to enforce your rights.
What is a DMCA takedown notice: DMCA stands for Digital Millennium Copyright Act and was enacted in 1998. It's a tool that copyright owners can use to help enforce the protections that the DMCA provides.
Elements of a DMCA takedown notice includes the following:
A physical or electronic signature of an authorized representative of the copyright holder of the allegedly infringed content
Identification of the specific copyrighted work claimed to have been infringed
Identification of the material that is claimed to be infringing with sufficient detail to allow the service provider to locate the material that is to be removed or made inaccessible
Information sufficient to allow the service provider to contact the complaining party
A statement that the complaining party has a good faith belief that the use of the material is not authorized by the copyright owner
A statement that the information provided is accurate, and that under the penalty of perjury that the complaining party is authorized to act on behalf of the copyright protected materials owner.
What if you are the one who's infringing on someone else's work?
You should always send a response, preferably through counsel. First, this will signify your willingness to resolve the issue without resorting to litigation, and it will (hopefully) avoid penalties and fees against you.
If you have counsel involved, your counsel may determine that there's no infringement on your part at all. But if there is, this may be an opportunity to work with the copyright owner through some licensing agreement.
If the matter is escalated to court, it's necessary that you have counsel on board who has the knowledge and trial skills to prosecute or defend in these actions. Because copyright law is federal, any case dealing with copyright infringements will be handled in federal court.
Failure to promote your rights through a timely DMCA Notice:
If you fail to send notice of takedown to the infringer, this could weaken your copyright protections. Therefore, it's necessary that you do more than file registrations for your work - you must police them for ultimate protection.
The key is never to wait for something like this to happen before hiring counsel. Find and hire counsel now so your rights can be promoted and your marks can be properly policed.
This article is a service of SL DeBarros Law Firm, LLC. We offer a wide array of business legal services and can help you make the wisest business choices throughout life and in the event of your death. We also offer a Business Protection Start-Up Session or a Business Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule.