Protecting your intellectual property and brand

You spend time crafting the perfect blog posts. You hire top-notch graphic designers to create your website and logo. You put your best work out there in ebooks or photography or original artwork.
And then it happens: someone has plagiarized your words, republished your content as their own, or used your artwork and designs on t-shirts. Or maybe you create artwork for a client but they haven’t paid you, and use the work anyway.

In this article, we’ll examine why it’s important to protect your brand and assert your right to your own content, and what you can do if someone else is using your own work on their website or elsewhere.

Your Rights and Limitations

Generally speaking, you own the copyright and all the rights and licenses associated with work that you yourself created. That includes written materials, photographs, code/software, visual artwork, music, audio recordings, spreadsheets, and any other creative art forms you can imagine.

These rights, however, might be limited or not apply if your work builds on existing artwork by someone else, such as sampling bits of audio for your own song. Whether or not you can use another person’s work in your own will depend on how much of that existing work you’ve used, how you’ve used it, and how you plan to use your final creation. (See the section on Fair Use, below.)

Licensing Your Work

Once you’ve created a new and original creative work, you can then license some or all of it to another entity and stipulate how they can use your work. For example, if a photographer licenses their photograph to an author to use on a book cover and materials related to that book, this may preclude the author from selling posters of that photo, for example, if it is not included in the terms of the license agreement. You might see this when purchasing an image from a stock photo site, in fact. If you want it for online use only, such as on a blog, you’ll generally pay less or get it for free. Use of the image for a book or t-shirt design, however, will require a higher-priced license.

You can also assign partial rights to another party. This often happens when an author gives a publisher domestic rights to publish their book in their own country. The author can retain international rights to publish the book in other countries (or in other languages), audiobook rights, or rights that would apply to turning the book into a screenplay.

• The takeaway: Always be sure to review licenses when “purchasing” something online to use for your business. And whenever you are providing your own content to a publisher or other entity, be sure to read your contract carefully (or better yet, send it to your attorney or legal professional) to make sure you understand exactly which rights you are selling and which you are keeping for yourself.

Copyright, Patents, and Trademarks

In the United States and in many other countries around the world, there are three forms of intellectual property protection and business branding: copyrights, patents, and trademarks. Let’s look briefly at what each of these mean, using definitions from the U.S. Patent and Trademark Office. (For the UK, see What is Intellectual Property?)

1. Trademarks

Trademarks consist of “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” There are also service marks that are used for services rather than goods.

Businesses will often trademark brand names, slogans, and logos. The purpose of these trademarks is to protect a business’ brand and prevent others from using their name or logo, or sometimes even images, colors, or ideas that are considered potentially confusing to a consumer.

Once a business receives a trademark, it is then obligated to protect that trademark and pursue legal action against anyone who may be in violation. Failure to do so could essentially “water down” the trademark until it becomes so commonplace that the trademark could be revoked.

And trademark violation doesn’t have to involve a direct copy. In one recent case, Buc-ee’s, a Texas-based travel stop, won a trademark lawsuit against Choke Canyon not for copying their branding but for producing signage that was similar enough, in the court’s opinion, to produce confusion.  

2. Patents

A patent “is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention.” Inventors can get a patent on a machine, physical product, industrial processes, and other properties by applying and demonstrating that the functional nature of their invention is substantially different from existing patents.

3. Copyrights

Finally, in the United States, copyright “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”

How long does a copyright last? According to the US Copyright Office:

• For individual works: the life of the author, plus 70 years
• For works created anonymously, pseudonymously, or for hire: 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

In the United States, everything you create as an individual is automatically protected by copyright upon completion/publication. So your blog, your Facebook posts, and your travel photos are all legally protected by copyright law without you having to take additional steps.

Protecting Your Work

If you want to trademark your brand or get protection for your latest invention, you will need to file trademark or patent paperwork with the government. This process can be somewhat costly and time-consuming, however, it ultimately provides you with the assurance that no one else can use your ideas.  

While it’s not technically necessary, it’s still a good idea to explicitly include a copyright notice on your website or blog to remind casual users that your work is protected (e.g. “All content on this website is copyright © 2018 by your name.”) That is usually enough to discourage casual unauthorized use.

If you plan to sell or otherwise use your content to make money, consider registering your copyright with the government (in the U.S., you can use the Copyright Office portal). Copyright registration doesn’t necessarily add additional protection but if you decide to sue someone for copyright infringement, you can potentially win additional damages in court. You’ll also have documented legal proof that the content is yours.

For more information on how and why to register a copyright in the U.S., take a look at the information provided by the U.S. Copyright Office. Even more detail can be found on their Frequently Asked Questions page.

What About Fair Use?

In the United States, “fair use” is a legal definition under Section 107 of the Copyright Act which allows some unlicensed use of content that is otherwise protected by copyright.

According to the U.S. Copyright Office, the factors that must be considered when determining whether or not the use of the material qualifies as fair use are:

• How is the material being used? Is it for commercial purposes or is it for nonprofit or educational use? It’s important to note that most–but not all–educational use automatically qualifies. Read the specifications for educational use carefully in this case.

• Is the material being used in a transformative manner and creating something new and distinct from the original work?

• What is the nature of the original material? It is easier to argue fair use if the material is factual (such as a quote from a news or research article), than if it comes from a more creative work like a novel or movie.

• How much of the original material is being used? And how much of the new work derives from the original? In most cases, a short quote may qualify for fair use while a longer amount may not, but it depends on context.

• How does the new use impact the current or future market of the copyrighted work? Will the copyright holder be potentially impacted financially by the use of their material?
  
  Ultimately, there is no universal yardstick against which to measure fair use, as each instance must be decided upon individually. Generally speaking, it’s okay to quote from a book or article in an academic work or use small bits in blog posts or similar works, but there are no guarantees. If the copyright holder believes their work to be used unfairly, they can pursue legal action.

• The takeaway: You should generally avoid using someone else’s copyrighted materials on your website, in your marketing materials, or as part of your own products unless you have a legal license to do so. If the copyright holder discovers unauthorized use, they can seek monetary damages and you could be required to destroy all copies of anything produced with the material.

What Can I Do If Someone Uses My Work Without Permission?

The Internet being the open market that it is, you will, unfortunately, discover that it’s extremely common to find someone else publishing your work on their own website. What can you do?

First, determine whether or not it’s worth worrying about. For example, if a small blog uses your photo or recipe without permission, but they attribute the source (maybe even with a link back to your site), it could actually help you gain more fans and web traffic.

1. Make a Polite Request

If you decide that you do not want your material used by another party, your first step is usually to reach out to them. Often, people will use things they find on the Internet without considering that it’s illegal or unfair to the original creator. Shooting them a friendly but clear email might be all it takes to convince them to remove the content in question or give you credit.

2. Use the DMCA to Get Content Removed

When a polite request fails, or if you have no way to reach the site owner, you can file a DMCA request. DMCA stands for the Digital Millennium Copyright Act, a U.S. law passed in 1998. If someone is using your content on their website without permission, you can file a DMCA claim with the hosting provider (if the website is based within the US).

How do you file a claim?

1. Determine who is hosting the website in question and file a claim with that company requesting that the content be removed. Most providers will have a specific process listed on their website, but you may need to do a bit of digging to find this information. To find the hosting provider, you can try a Whois request, search Hosting Checker, or check the site footer for clues.
2. Once you have determined the provider, search that company’s site for a page about DMCA claims, copyright violations, or abuse. Most companies will have a form or email address you can use to report the violation. If all else fails, try using the address “abuse@companyname.com”.
3. Most providers will have a form or specify the details they need, but if you are sending an email, be sure to include links to the offending content as well as to the content on your own site (if relevant), your contact information.

Note: if you get a DMCA claim for content on your own site, don’t panic (but be sure to respond to the notices you receive). Copyright trolls have tried misusing the law to gain unfair competitive advantage, remove legitimate content they disagree with, or harass site owners. However, companies are more aware of the potential for fraud these days. As noted in Wired Magazine, a study by UC Berkeley and Columbia University showed that in a sampling of 108 million takedown notices over a six-month period, fully one-third were questionable or fraudulent. And filing a DMCA notice requires you to acknowledge that a false report is subject to prosecution for perjury.  So, if you are the creator or have a legitimate license or permission to use the content, you should be safe.

When You Might Need a Lawyer

Sometimes, polite requests go unanswered. Or a DMCA notice gets ignored (perhaps the hosting provider is outside the U.S.). Or perhaps your content is being used to promote products or ideas that harm your own brand.

That’s when you might need to speak to an attorney.

Often, all you will need is for the lawyer to draft up a “cease and desist” letter, which is a way to legally declare you have the intent to pursue further legal action (whether or not you do). More often than not, a letter received on law firm letterhead or an email from an attorney will be enough to convince someone to pull your content off their site rather than face a lawsuit.

If your lawyer’s intervention isn’t effective, if there is a trademark violation, or if the offending party is using your content on merchandise like t-shirts or mugs, it’s time to consider further legal action. This should be a last resort in most cases as suing someone for copyright or trademark infringement can be costly and time-consuming. Sometimes, however, it’s necessary to protect your intellectual property.

Final Notes

We hope this article has helped highlight the legal and ethical issues surrounding intellectual property and brand protection. Remember that most of this information references laws in the United States, and your rights may vary depending on the laws in your country. Even so, this information can still serve as a template for researching your options and taking action.

Along those lines, this article does not constitute legal advice. If you have further questions about your legal rights, please be sure to consult the official government sites cited here (or the equivalent in your country), or contact an attorney familiar with intellectual property law.

To learn more about how to find and use photos and other online resources on your website or blog, check out our companion article, How to Avoid Copyright Violations.

Sources:

Digital Millennium Copyright Act (Wikipedia)
Hacker Lexicon: What is the Digital Millennium Copyright Act? (Wired Magazine)
More Information on Fair Use (United States Copyright Office)
Trademark, Patent, or Copyright? (United States Patent and Trademark Office)
False DMCA Takedown Notices: Ninth Circuit Holds that Copyright Owners Must Consider Fair Use Before Issuing Take-Down Notices (Gerben Law Firm)
Bogus Claims: Google Submission Points to Massive Fraud in Search Index Takedown Notices (blog of copyright law professor Michael Geist)
Copyright in General (U.S. Copyright Office)
What is Intellectual Property? (British Library)