Congratulations. You’ve written what promises to be the next bestseller. Your prose is so good, in fact, that someone else steals part of it for what they hope is the next top-selling book. Is there anything you can do? According to Joseph Dreitler, a longtime intellectual property attorney and namesake of Dreitler + True, the first thing to do is to make certain the material is, in fact, copy written.
“Copyright law is counter-intuitive with all rights belonging to the author,” says the Columbus lawyer. He advises independent contractors and employees who lend their talents to a creative endeavor beyond their job description to sign a “work for hire” agreement.
It is important to note that while “copyright registration is not necessary for ownership, it is necessary for enforcement,” says Dreitler. In other words, if the work hasn’t been registered for a copyright with the United States Patent and Trademark Office, a lawsuit for copyright infringement won’t be successful.
“For this reason, important documents and other copyrightable materials should always be registered. This is a very inexpensive and easy process (the registration fee is only $35),” says Dreitler.
Beyond being certain who owns the material, Brian Downey, Of Counsel with the Columbus office of Barnes + Thornburg, says not to “clip stuff off the Internet or from a book because Copyright protects original works that are in a tangible form.” According to Downey, in the context of copyright laws, ‘original’ is defined as something created either by you or a full-time employee, not an independent contractor.
If you suspect your copy written material has been infringed upon, Downey suggests the following steps be taken initially:
- Confirm the work has been infringed
- Demonstrate how someone else had access to your work
- Be prepared to prove your work is original
- Be certain the two works are “substantially similar” to the ordinary observer
Ceasing, Desisting and Litigating, too
“If you write a Cease and Desist letter, be prepared to litigate,” warns Downey. That’s because the United States Supreme Court has ruled that when a party issues a C&D letter, the letter’s recipient can respond with an action for Default Judgment. Depending on the facts, it might be advisable to sue first, then have your lawyer send a C&D letter, especially when the defendant is located across the country from you. By filing the lawsuit in your jurisdiction first, you ensure the defendant can’t prosecute the case in their jurisdiction (unless they successful win a “Change of Venue” argument, but that’s a whole other story). That will save you time, money and a lot of aggravation.
According to Dreitler, the role of a Cease and Desist letter varies depending on the nature of the infringement. If the infringement is online, the Digital Millennium Copyright Act provides “notice and take down” provisions, he says. Those provisions can be extremely effective to invoke in situations when the infringed material is hosted on several servers or websites not owned by the infringer (which is usually the case). Since the owners of the servers and third party web sites can be held liable for contributory infringement if they do not remove the materials, they normally do so quickly when notified of the situation, he says.
Certainly litigating based on suspected or actual infringement isn’t always the way to go. If the infringement involves the posting of your materials online without permission, often a simple e-mail notifying the alleged infringer of your rights will resolve the dilemma, says Dreitler.
Wouldn’t it be fantastic if all disputes could be resolved that way?
Tami Kamin Meyer is an Ohio attorney and writer. She tweets as @girlwithapen.
