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Welcome to Copyright Law Radio. My name is Copyright Attorney Enrico Schaefer. Today, we are going to talk about an issue that comes up all the time. An artist or author, otherwise known as the little guy, who produces or authors a piece of original work and the work ends up getting used by a large company without permission.
In fact, oftentimes, what happens in these situations is that the large company sees it in the environment, the marketing company picks it up, reproduces it, either identically or substantially similar to the otherwise protected work and incorporates into an advertising campaign or product or service without permission.
The question we get from clients as copyright attorneys is “What can I do? I’m a little guy, how do I protect my copyright protected work, my original work of art or authorship when a big company comes in and steals from me?” And the issue always comes down to one of economic advantage or economic disadvantage. “I don’t have a lot of money to sue a large corporation when my work is stolen”. And, of course, the attorney for the large corporation is going to come in on the copyright infringement claim filed in court as a lawsuit and say, “It's not even similar, it’s not the same,” even when it would be obvious to anyone that the two works are virtually identical. What the copyright infringement defense attorney is going to do for the large corporation is simply deny all the allegations. Deny everything and then take the position that you have to sue us to the end in court.
Finding a copyright infringement attorney to file a lawsuit on your behalf on a contingency fee basis is virtually impossible. It can be done, but there are very few of us attorneys who are willing to even take a look a copyright infringement on a contingency attorney fee basis. So, what you’re left with is a plaintiff who is, in fact, the copyright owner having very limited ability to enforce their rights under copyright law because they don’t have the money to sue in court, especially when the defendant is a large corporation.
I saw something the other day that was pretty interesting. It was an article about a company in the United Kingdom, which had clearly stolen an artist’s design for a rendition of a sign that said, “You look nice today.” It was in a particular font and it had a heart at the end of it. The company that eventually picked up on this and reproduced into a series of products such as doormats denied, in fact, that they were the same things, that these were the same piece of artwork. Anyone looking at these would immediately know that that was not true and the little guy, the copyright holder, is simply left without a remedy. The copyright holder, the little artist, the little guy cannot sue the big corporation in court for copyright infringement.
Now, one thing that the copyright owner could have done to better protect themselves with their original piece of art is they could have registered their original artwork with the copyright office. Copyright law gives you additional advantages and benefits when you register your work with the copyright office. That would have allowed perhaps some additional remedies. So, what do I do if I’m the little guy, I’ve got an original piece of artwork, I’ve got an original piece of authorship and someone else uses it, and that someone else is a big company? How do I protect my copyright against a large corporation? The answer is that you need to keep looking for an attorney who is willing to take a hard look at your case.
The first thing that you’re going to do is you’re going to send a copyright infringement threat letter and you’re going to try and bring the other side to the table. Getting into a copyright license with that company is always a first step/first effort, so that at least you are getting paid for your work. You might also demand that they cease and desist any further use of the copyright protected work. You goal could be that you don’t want a license your copyright work, but you want to, in fact, preclude any further use of it by the defendant. Of course, that’s sometimes a harder pitch. Keep in mind that if someone willfully infringes your copyright protected work, you could be entitled to statutory damages in a sum up to $150,000, and that also will include attorney’s fees, potentially, if you are successful. So, you do have some leverage here to protect your copyright work, but you need to take some affirmative steps in order to improve your rights.
Before your work gets stolen, you need to register it with the copyright office. You need to send copyright infringement threat letters, where appropriate, where you see your work is being infringed. You need to be able to monitor and track any use of your work on the internet in the online space. Keep in mind, there’s tracking software options available which allows you to, in a sense, put a finger print on your copyright protected work so that if, in fact, it is copied and used elsewhere, that finger print can be picked up by the software and you receive notice that someone else is using your work. You need to send notice letters to people who are thinking about infringing your work. You need to send Digital Millennium Copyright Act takedown notices to websites, website hosts or third parties where your work is appearing. If it’s user-generated content uploaded to that site. For instance, if it’s appearing in Google Images and it’s your work and being disseminated by someone else, you can send Google a Digital Millennium Copyright Act, a DMCA takedown notice indicating that you are the copyright owner and that it needs to be removed from their Google Image Search Tool. If the images are appearing on a website or that book is being sold through Amazon.com or somewhere else, you can send DMCA takedown notice in order to have the work protected.
So, protect your copyrights. If you are the little guy, you’ve got to be very proactive so that by the time someone bad does happen, you’ve positioned yourself to give yourself maximum rights under copyright law.
This is Copyright Attorney Enrico Schaefer. We’ll see you next time.
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