It is SO frustrating when you spend time and effort on creating your beautiful and unique vinyl and etching design, and then see someone blatantly stealing it and selling it. I often wondered what you can really do when this happens. Thankfully, Joey Vitale over at Indie Creative Law knows all about this and graciously wrote the guest post below to help us out.
Joey is an amazing attorney who specializes in Indie shops...if you ever have legal questions about crazy stuff happening over on Etsy, it's far better to ask Joey than try to get your answers from random posts in groups. Check out his website or Facebook Group and say hi to Joey!
Is someone stealing your designs? Three things to know about copyrights.
“Hey! So, um ... I think I need an attorney. I just found out that someone copied my design and is selling it online for a lot cheaper. I’ve reached out, and they won’t take it down. Aren’t my designs copyrighted? This is starting to affect my sales. What can I do to get them to knock it off!?”
As an attorney for creatives, I get this question a lot from designers. It’s one of the most commonly asked questions in my firm’s Facebook group.
Here’s the deal. There are three key things to know about copyrighting designs.
1. You do have “automatic” copyright protections in your designs.
As soon as you create your design, you technically get copyright protections over it. That’s right—you can now tell the world that you own copyrights to that design.
You can go ahead and slap that © symbol on this design to claim ownership of it. If someone infringes on your work, you can send a “cease and desist” letter, which is basically a serious-sounding letter informing them of your copyright protection and requesting them to take down their items.
If the infringement occurs on a third-party platform, like Facebook, Instagram, Etsy, or Shopify, then you can send a DMCA takedown notice. “DMCA” stands for the Digital Millennium Copyright Act, and it’s a procedure that businesses must follow if there are claims of copyright infringement on their platforms. Locate their DMCA takedown rules (just Google “DMCA” and the business name), send a letter or complete a form following their instructions, and then the platform will take down the items at issue. Just note that, if the infringer contests your notice (by filing a counter notice), then the platform will put the items back up. DMCA takedown notices are great because many of them go uncontested (meaning that the infringed items stay removed), but if they are contested then you’re back at square one.
2. Automatic copyrights aren’t nearly as powerful as registered copyrights.
The reality is that automatic copyrights sound a lot better than they actually are.
Why? Because you can’t enforce your copyrights unless they are registered.
That’s right. You are not allowed to sue over copyright violations unless your copyright has been registered with the U.S. Copyright Office.
Wait. What about those cease and desist letters and DMCA takedown notices? Without a registration behind those letters, they are mostly empty threats. Don’t get me wrong—they very well might scare away the copycat. But if they understand the law, they can “call your bluff” knowing that you can’t take further action without a registered copyright in place.
The ability to file a lawsuit isn’t the only perk of registering your copyrights. If you register your copyrights within three months of creation or before any violation has occurred, then you could be entitled to up to $150,000 in damages per violation, plus attorney’s fees.
Alright, so yes, that kind of penalty means you potentially get A LOT of money if someone copies your work. But the real value here is using it as a deterrent. With a registered copyright, those cease and desist letters and DMCA takedown notices of yours just got a lot scarier. With an attached copyright registration, many violators will comply and stay away from your works.
3. Registering copyrights isn’t rocket science, but it can get complicated.
Here’s the best part. Registering your copyrights isn’t that expensive, and applying for a trademark isn’t as difficult as you might think.
In order to start the application, visit the U.S. Copyright office’s website here, and create a free account. After that, you’ll complete an online form to submit your application.
The filing fee to register a copyright is only $35-$55. The questions asked in the application are relatively straightforward, but it might confuse you if it’s your first time.
“Cool! But wait, does this mean I have to apply for all of my designs separately?”
Maybe. The general rule here is that if you have already published your designs and shown them to the world, then you must apply separately for those copyrights. That means paying the $35-$55 fee for each design.
But if you are working on several designs that won’t be published for a while, then may be able to apply for those unpublished works under one application. This is an example of of when applying for a copyright can get complicated and when it might be a good idea to bring on an attorney to help you.
If you’re investing the time and money to register your copyrighted works, then probably also want a solid cease and desist letter to scare violators away. You might also want something called a “license agreement” for whenever you want to give a person or business a limited ability to use your copyright. You want to find an attorney who can help you with these “big picture” concepts around copyrights, and my firm specializes in providing those kinds of services.
Joey Vitale is an attorney for creatives who helps entrepreneurs around the country protect their passions. He offers flat-fee packages and subscription plans that allow business owners to budget and plan for unexpected but needed services.