Taming The Infringement Beast (without straightjackets or spendy lawyers)

Copyright & Infringement, Lela Barker Let's Get Ethical graphic by Lauren Hardage

Let’s Get Ethical image designed by Lauren Hardage for OMHG

Ever felt as though you wouldn’t actually need your business if you only had a dollar for every time someone swiped a product picture or borrowed your web copy? You’re not alone. If you’ve been in business for more than a hot minute, you’ve probably come face-to-face with the Infringement Beast. He’s a nasty creature: disheveled and slovenly, inconsiderate and demotivating on an epic scale. And yet he lurks in the shadows of creativity, almost impossible to vanquish, rearing his ugly head at the most inopportune occasions.

At the helm of my beauty company over the course of a decade, I’ve stared down more cases of picture pilfering, copyright swiping and trade dress lifting than I ever care to recount. The refrain I often hear from others is: “Well, imitation is the sincerest form of flattery.” Please allow me a brief moment on the soapbox. *ahem*

That’s utter bull^*!@. The sincerest form of flattery is telling me that you think my work is awesome. It’s purchasing something I’ve poured by blood, sweat and tears into to help me feed my kids and get them to college. It’s thinking enough of my work to share it with your friends and family while telling them where it actually originates. That’s flattery. Imitation is just another energy-sucking nuisance that creative entrepreneurs have to wade through. Can I get an “amen?”

I’ve tried a multitude of approaches when confronting intellectual property poachers: Fire up the big lawyer guns. Send nastygram emails reeking of frustration. Send cordial emails politely citing case law. Harness the power of social media to shame the offending party. Ask a seamstress friend to whip up a voodoo doll in the infringer’s likeness and check under all the couch cushions for spare change to buy more straight pins. Just kidding on that last one. (Well, mostly kidding.)

As my business has evolved, so has my methodology. I’ve developed a more disciplined approach which manages to keep my blood pressure at a healthy level while resolving most intellectual property conflicts. In the interest of public health, your personal sanity and minimizing legal expenses, I’m sharing my system with you, gentle reader…

Step 1: Breathe.
First things first, when you realize that some less-than-original soul has taken a shining to your content, I humbly suggest any and all of the following: deep, cleansing breaths; a long bath; a glass of wine (preferably red); chocolate (preferably dark); yoga; playing with your puppy; a long walk with lots of fresh air; making out with your significant other; a call to your bestie; an exhausting run (better you than me!).

Remind yourself that as much as infringement stinks, it’s not the end of the world.  A clear head will come in uber-handy when you make contact with the infringing party and superhuman patience will be your ally as you work towards a resolution.

Step 2: Ensure this is really infringement.
Intellectual property laws within the United States rival only the federal tax code in their complexity. There are multiple types of IP, various federal registrations and assorted inherent rights that are in force even without official registrations. Consult a qualified attorney, a seasoned business colleague with heaps of experience in this particular area or the interwebs to gather information about the law and how it might apply to your specific situation.  The Copyright Office and the US Patent & Trademark Office offer a wealth of information. (Ed. note: Sweet Eventide’s post has a list of important links to help you out!)

Remember that not everything that feels like infringement is actually infringement. And sometimes even legitimate cases of minimal infringement aren’t worth the energy you’ll expend to remedy them. Choose wisely how to spend your time and direct your resources. Everyone’s threshold is unique, but my litmus test revolves around how professionally put together the other party’s material seems to be and whether or not I see their actions as a true threat to the future of my brand.

Step 3: Document the infringement.
Before you ever make contact with the infringing party, you should conscientiously document the infringement. I recommend taking screen captures of both your original content and their unoriginal take on your content.

Step 4: Send a Cease & Desist letter.
Cease & Desist letters are communications sent from an aggrieved party (that’s you) to an offender (that’s them), demanding that the offender stop activity which the aggrieved party deems to be a violation of their rights.
C&D’s can be sent via email or- for maximum impact- via Federal Express or UPS overnight service with a signature required. Those delivery options will set you back around $20, but they are swift, traceable and they offer an air of credibility. If you go the tangible delivery route, be certain to print the C&D letter on your letterhead and affix your signature. C&D’s have no particular legal format but they should:

  • Identify perceived violations
  • Cite specific law
  • Detail expected corrective measures
  • Define a timeline for action
  • Inform of potential next steps

Since they can be prepared by an individual or an attorney, many small businesses compose the first “shot across the bow” themselves and then defer to a licensed attorney if the offender fails to take the requested corrective measures. Unless you have money to burn, I suggest you step up to bat first and save your lawyer for heavier lifting. Remember to be calm and specific.

Send the letter. Hope. Pray. Stay busy building your empire.

In most cases, the infringing party will resolve the dispute quickly and quietly. If they legitimately didn’t know the rules of intellectual property, then they’re probably embarrassed and eager to fix things (even if they aren’t eager to talk to you about it). If they knew the rules and just hoped they wouldn’t get caught, then they’ll probably make the changes and slink away quietly.

Every once in a while, you’ll stumble upon a stubborn mule who refuses to budge. Perhaps they’re having a particularly bad week. Or maybe they need some excitement in their life. There’s always a chance that they truly feel justified using your work (for whatever reason). Maybe they just want to see what happens next… Whatever the case may be, stay calm. Think through your options carefully. Sleep on whatever you decide. Ask a few members of your entrepreneurial sounding board team about the dilemma. But don’t worry; you still have a few tricks up your sleeve!

Step 5: Shine the social media spotlight.
More and more often, small companies are using the power of social media to cast a bright light on perceived infringers. And almost as often, their comrades in the small business trenches take up their case and sound the clarion call for action. A taste of social shame is often enough to make even the most stubborn mule consider greener pastures. If you chose to take your dilemma to the airwaves via social media, then I recommend the following:

  •  Refrain from any sort of name calling.
  •  Be brief.
  •  Post photos, screen captures or links to support your claim.
  •  Address the infringing party directly; by name and using their social media handle if possible.

As soon as you take the dispute public, matters are largely out of your hands. Remember that people often behave shockingly when moving in herds. To minimize the risk of things heading south, try these tips:

  1. Make absolutely certain that the offense is actual legal infringement before going public.
  2. Be certain your own closet is clean. You better believe people will go rummaging through your laundry basket looking for soiled linens, too.
  3. Stay above the fray. Don’t post anything that escalates the temperature of the matter.

Still no movement? Oh my…

Step 6: Appeal to the site host.
There’s this groovy piece of legislation out there called the Digital Millennium Copyright Act (DMCA). Passed in 1998, it ups the ante on US copyright enforcement by empowering copyright owners with a new set of provisions that put the squeeze on cheaters.

Essentially, the DMCA asserts that website hosts can be held legally responsible for any infringing content which they knowingly continue to display. Which means that you need to bring the infringing party to the attention of their own host. If the web host refuses to take action via removing that website, then they’re in hot water right alongside the infringing party. And most web hosts are larger corporations with in-house legal teams whose careers are built on protecting their employers rather than competing in “Mr. Mule 2013” pageants. Lucky you!

There’s a neat little tool that can you lead you directly to the host without the need for breadcrumb trails. Use Domain Tools to locate the web host and then Google the company name to land directly on their website. Once there, search for information about the preferred format for DMCA complaints. Look for it on their “legal” page, on their “terms of service” page or on their “contact us” page.

Submit your DMCA complaint to the host via their preferred method. Remember to be calm and polite. The web host is not the infringing party. They’re your ally in getting the infringing party to cooperate. Most web hosts respond within 48-72 hours. If you haven’t heard anything by the fifth day, reach out again. If the host responds with a request for more information, provide it expeditiously.

Step 7: Appeal to the search engines.
How devastating would it be if your website stopped getting referral traffic, starting today? Nothing incoming from Google? Oh, the horror! Search engine traffic is the lifeblood of most websites and the idea of having it cut off will stop many copycats dead in their tracks.

Most of the world’s major search engines are located within the US, which means they are constrained by DMCA regulations. If you’ve come up empty-handed after approaching the infringing party directly and contacting their web host, then taking your complaint to the search engines is the logical next step.

Step 8: Find your allies.
If all else fails (and I am praying alongside you that it does not), then my recommendation is to scour the infringing website for evidence of infringement from parties other than yourself. Thieves often lift content from multiple parties. Use services like CopyScape and TinEye to automate infringement monitoring. Plug pieces of the infringing website into these services and see if it traces back to other websites that Mr. or Mrs. Copycat have become all-too-friendly with.

If so, then your next step is to compose polite but well-documented emails to the owners of those sites, informing them of the infringement and suggesting next steps they can take. I have used this approach in the past with success. There really is power in numbers.

Step 9: Long Baths + More Wine + Letting Go
At some point, you may have to surrender this fight. The sad truth is that infringement is pervasive and hard to resolve at times. If it’s any reassurance, I have never once failed to get at least a modicum of resolution using these tactics. But I must admit that the resolution isn’t always packaged as nicely or delivered as quickly as I’d like.

If you’ve diligently followed steps 1-8 without success, then a long, hot bath and red wine are in order. They’ll help relieve the frustration and bring perspective. If you wake up tomorrow and still feel that the infringement is a true threat to your brand that you’re willing to plunk down serious cash to pursue a lawsuit, then call your intellectual property attorney. I’ll even offer you mine.

In my humble opinion, the expense and stress don’t yield enough benefit to warrant a lawsuit in the vast majority of cases.  Sometimes letting go and focusing on your own success is your best option. And isn’t success the best revenge, anyway? Be certain that your own ego doesn’t drag you into the dragon’s den and allow yourself the space to to ensure your responses are proportional to the offense.

Intellectual property is both an art and a science. The subject is vast and far too complicated an affair to be condensed neatly into a pint-sized OMHG post. If you’d like to learn more about the intricacies of intellectual property and how you can build a solid brand and then protect it from infringement, then I humbly invite you to check out my “Imitation is NOT the Sincerest Form of Flattery” virtual class. It’s everything you ever wanted to know about copyrights, trademarks and infringement (and then some). The class includes 292 digital slides and is accompanied by draft C&D letters, host and search engine notifications. Woohoo!

The not-so-fine print: The information contained in this post is provided for informational purposes only and does not constitute legal advice. Just so that we’re all clear: legal advice is guidance on how the law applies to a particular situation. I am not a lawyer (I don’t even play one on TV) and I’m not qualified to offer legal advice in any state, including Alaska, Hawaii, Puerto Rico, the US Virgin Islands and any/all other exotic outlying parcels. I highly recommend the services of a qualified attorney for guidance about your particular needs.

As a small business consultant, copyright and trademark woes are one of the most common subjects about which my clients seek information and perspective. I know that infringement occurs far more often than we might like to think. Has it happened to you? I’d love to hear your stories and learn how you handled the Infringement Beast!

  • http://twitter.com/bekajbuckley Beka Buckley

    …well your advice may only be for informational purposes, but it is frickin’ awesome all the same. Well balanced, good humoured, and with a pragmatic approach that all would be well to follow in – or is that infringement? 😉 Anyways, I just wanted to say truly brilliant article and summary on this slippery topic. And voodoo dolls (or their English equivalents, poppets) are good for getting your frustrations out, all the same 😉

    • http://www.luckybreakconsulting.com/ Lela Barker

      Ah, thanks Beka. I long ago realized that my childhood dream of law school didn’t suit me nearly as well as I imagined. Little did I know how much legal self-help I’d have to do as a creative entrepreneur! It helps to know that I’m in good company. This is such a maddening issue for creatives and I hope the advice offered helps someone else plow through the agony in a productive way. Side note: I’m officially calling voodoo dolls “poppets” from here on out. Makes them sound so benign. 😉

  • http://twitter.com/SweetEventide Jessica Nichols

    Lela, our posts go so well together! Creatives have a lot of power to tame this beast in general. I know my case goes above & beyond but every piece of action advice you outlined is spot on. Thank you for this awesome post. I am now dreaming of a day of action on April 1st called “Don’t Be a Fool!” and I want people to register at least one copyright, prepare a cease & desist template for themselves in case they need it, and update the copyright policies on their websites. What do you think?

  • Pingback: Protecting Your Copyright » Sweet Eventide Photography()

  • Theresa

    This post rocks! I’ve had: blog posts stolen or copied, header copied right down to the font and layout, and recently, my web copy from a sales page was lifted and “recycled” (it didn’t fool me though as the structure and wording were almost identical in some places). So thank you for posting this article – the advice is perfect and hopefully I will never have to use it – but sure wish I had this when I was dealing with my biters.

  • Jennifer St. Jean

    Amen!!
    This is my favorite part!! “That’s utter bull^*!@. The sincerest form of flattery is telling me that you think my work is awesome. It’s purchasing something I’ve poured by blood, sweat and tears into to help me feed my kids and get them to college. It’s thinking enough of my work to share it with your friends and family while telling them where it actually originates. That’s flattery. Imitation is just another energy-sucking nuisance that creative entrepreneurs have to wade through. Can I get an “amen?””

    • http://twitter.com/SweetEventide Jessica Nichols

      Yes, you can get an AMEN.

  • http://www.facebook.com/janet.kubiak.wieczorek Janet Wieczorek

    I’ve only read the first three paragraphs and already I’m jumping up and
    down with an enthusiastic and heart-felt ‘AMEN’!!!!! Thank you for
    spouting off so eloquently and passionately about that STUPID saying
    about imitation being a form of flattery. I cringe every single ding
    dang time that I hear or read that comment. And I always say – NO IT’S
    NOT! But I’ve never said it as awesomely as you. I thank you from the
    bottom of my heart. Exuberantly.

    Janet, http://www.feltonthefly.com

    • http://www.luckybreakconsulting.com/ Lela Barker

      I am so very grateful that you can empathize Janet!! I wish I had a dollar for every time someone gave me the flattery line and, well- let’s just say that I’m not very flattered. 😉

  • http://www.iamthelab.com/ I AM THE LAB

    Love this post. So balanced and informative. It will serve as a great guide for a little project I’m working on. Thanks!

    • http://www.luckybreakconsulting.com/ Lela Barker

      You’re most welcome! If you need any help with you project, then feel free to give me a shout!

  • http://www.facebook.com/sara.bollivarheilwagen Sara Bollivar Heilwagen

    Thanks for sharing! I shared an excerpt on my business FB page this morning. The outright copying that happens, especially on Etsy, is sad and annoying and hopefully by bringing it to customers’ attention they’ll be more aware before they hit “order”.

    • http://www.facebook.com/sara.bollivarheilwagen Sara Bollivar Heilwagen

      I did credit you btw! 🙂

    • http://twitter.com/SweetEventide Jessica Nichols

      Sara, I’ve been on Etsy since the very beginning in one way or another. The levels of infringement there nowadays is heartbreaking to me. Etsy is so removed from its roots. It has changed so much.