What To Do When Your Digital Work Is Stolen
December 21, 2018 |
One of a licensee’s largest professional expenditures is on self and client marketing and promotion. Licensee’s spend significant time and resources on developing their brand, whether it be through designing a website, publishing a blog, or displaying photographs. When a competitor pirates your work, it can be detrimental not only to your brand but also to your bottom line. What are your options if your digital work is stolen?
The federal law on point is the Digital Millennium Copyright Act (“DMCA”). The DMCA is a sister of traditional copyright laws (which address printed works) but designed to deal with the protection of digital material. The DMCA protects the owners of work that appears online from being used without the owner’s consent. Provided certain conditions are met, the DMCA also protects internet service providers (“ISP”) from liability for displaying the stolen material. To be eligible for the protections, the ISP cannot know about the stolen material, the ISP cannot receive a financial benefit from the stolen material and the ISP must expeditiously block access or take down the material upon notification of the theft of the material.
For example, you prepared an article for your blog about the specialized steps you take to sell a luxury home. Later you determine that this same article is on a competitor’s website, appearing as if your competitor, not you, drafted the article. Here, your digital work is being used by another on another website without your permission. Per the DMCA, you can issue what is called a “take down notice” to the website owner and the ISP hosting the website. Upon receipt of the takedown notice, the ISP must take down or block access to your article. The ISP also must notify the competitor displaying the article that the article was removed from their website.
There are sample DMCA notices you can use, but generally, you must identify what has been stolen, that you are the owner of the material and where it is displayed. Your notice has to be under penalty of perjury that your statement is accurate. The person accused of displaying your material does have a right to issue a “counter-notice” to challenge whether you are the owner of the material or whether the person has a right to display the material. If a counter-notice is filed, you would then have to file a lawsuit for a restraining order or injunction. You always have civil remedies in either state or federal court should your business suffer losses as a result of the theft of your digital material.
To protect your work, consider having your logos registered for a copyright. This will give you additional avenues to recover more comprehensive damages should your work be stolen. You have an automatic right to copyright any work you create (even if your copyright is not registered). At a minimum consider including a copyright notice on your materials, including the date, the owner, and a statement of rights. This puts the public on notice that you intend to enforce your ownership rights in your materials. All of these methods will help protect the time and resources you spent on developing your brand, website, articles, and photographs.