Copycats and Copyright Infringement
If you are running an online business, there is a strong possibility that sooner or later, you will run into issues of copyright infringement. This could range from someone innocently sharing something you created without proper attribution, to someone taking your creative work and presenting it as their own, with an intention to profit from their theft. In this blog, I explore what steps you can take if your copyright is infringed.
Notice a problem
Not everything you create in your business is protected by copyright. As a result, it is important to develop an understanding of which intellectual property assets copyright applies to. Your original creations are generally protected by copyright if they can be characterised as:
- literary works (which covers your blog posts, marketing material, website content, written tests etc),
- graphic works (which covers your photographs, images, drawings etc) or
- dramatic works (which covers your videos, webinars, etc). but not ideas or phrases
- musical works
It is important to remember that there is no copyright in ideas, so if you come up with a truly unique concept that you want to protect, it is important to seek legal advice BEFORE you share it anywhere. Copyright also does not protect names and phrases, including hashtags, as these are considered to be too small and lacking in originality to constitute a work protected by copyright. Instead, these may come under protection as trade marks, if they are used to identify your business and embody your reputation.
While copyright exists automatically in Australia, protecting your copyright requires that you actively monitor the way your work is used. It is a good idea to build the habit of conducting regular text or image searches for content that you care about. You can also use plagiarism software, or set up Google Alerts to let you know when a topic that interests you is being discussed online.
In most cases, however, copyright infringement will come to your attention in an indirect manner. You may just get (un)lucky and notice something suspicious while you are scrolling social media one day, or someone in your audience will tell you that they noticed an uncomfortable similarity between your work and that of another business. If you are a photographer or designer, there are a number of agencies who have made a business of crawling the net searching for images that have been registered with them (for a fee) and chasing down compensation from the infringer. These can be an effective way of outsourcing the required vigilance, but it is essential to choose a reputable agency.
Not every use of your work will be an infringement. There must be a substantial reproduction of your copyright material, and the final product must be similar to your original. Substantial in this context is determined by the quality and quantity of copied material. Even copying a small amount of something can be an infringement if it is recognisably similar, but if someone takes your work, crafts it into something new and puts their own unique spin on it, that may not be an infringement of your rights. In general, the courts will focus on the recognisable quality of what has been copied, rather than the quantity. Australia does not have a “fair use” provision in our copyright law, but it may not be an infringement of copyright if your work is used for the purposes of research or study, criticism or review, parody or satire, or for reporting the news.
Decide what to do
There is an advantage in deciding in advance how you intend to respond to copyright infringement. That way, you are not left REACTING from a place of hurt and anger if you do find that your work has been copied. There is a range of possible options available to you, from “Laugh it off” to “Litigate”. At times you may determine that the infringement is not worth pursuing, while in other circumstances you may want to take protection of you IP seriously and respond aggressively with legal action. This may depend on whether the infringement is commercially damaging, and whether accidental or flagrant or malicious.
If you are somewhere in the middle of this range, there can be a lot to be gained by reaching out to the infringer with caring and curiosity (rather than aggression). Before you do this, it is important to seek legal advice to make sure there has been an infringement and to ensure you understand what you can and can’t say. A good lawyer will also help you get clarity about what you want the infringer to do. Possibilities include:
- taking down the infringing material
- paying you for its use, or
- apologising (privately or publicly).
Unless you are totally ok with copycats, there is plenty of action you can take to mitigate the risk of copyright infringement before it happens – that is, protective measures that diminish the likelihood of someone copying your work. This can include:
- marking your work with the copyright symbol – (c) [your name] [the year of creation]
- watermarking photographs or otherwise branding them so people can find their way back to you
- being honest about how it makes you feel – write a blog post describing – without naming or shaming – occasions when your work has been misappropriated and explore the effect that had on you… then put a link to that blog post in the footer of your webpages – much more effective than the copyright symbol alone. You can say something like “If you are considering copying my work I am flattered, but please read this blog post first…” If you can get a potential copyright infringer to empathise with you they are less likely to take your work
- trade marking names, logos, catchphrases and taglines, and
- keeping your best material secret, sharing it only with those who have paid to access it, and protecting that with a contractual agreement.
Take appropriate action.
As I mentioned above, it is a good idea to get legal advice, even if you are just planning to reach out and make personal contact, as copyright issues can be complex, and there can be serious consequences for accusing someone of copyright infringement where none exists. If you can’t afford a lawyer, the Australian Copyright Council has a lot of great resources and information sheets to assist professional artists and content creators.
All of the main social media platforms, including Facebook & Instagram, have effective complaints processes in place where you can report copyright infringement and request that infringing material be removed.
Legal responses can range from sending a cease & desist letter, to mediation to court action, which can be very expensive. In Australia, there are only civil law remedies for copyright infringement. That means, if your cease and desist letter doesn’t work, you have to take the infringer to court and claim damages, or an account of profits. Damages is compensation for money that you have lost (such as lost sales) or spent (such as legal fees) in relation to the infringement. An account of profits means that the infringer has to repay you any profit they have made by selling the material that infringes your copyright.
Copyright infringement can also be a criminal offence, but usually only if it relates to commercial piracy of music, videos or computer software.
How I can help
For a business owner – particularly an online business owner – understanding how the ownership of intangible ideas operates and how creative work can be a commodity is vital to your survival and success. Protect yourself and your IP assets from pretenders treading on your toes and trading on your reputation! Join me for an IP Strategy Session so I can answer all your questions.