Creatives and the Law

Wednesday, December 2, 2015

Someone Stole My Work - What Should I Do?

If you put your work on the internet, eventually, one of your images will get stolen. When that happens you will likely feel a flurry of emotions -- shock, anger, frustration, and maybe even a little excitement (it is nice to be wanted). But, eventually, you will likely settle on anger and want justice.

Let me be clear, if you download an image off the internet without the author's permission, you are stealing. If you happen to "borrow" a site design or vector from another website, you are stealing. Unless the artistic creator explicitly states that you have a right to use their intellectual property for FREE, you do NOT have the right to download, use, or borrow anyone else's work (even for personal use). Besides, it is bad karma so just avoid it.
Now, what do you do if your work is stolen? Well, first thing first, if an individual or business has stolen your work, send a certified cease and desist letter to the company's president or, if you are dealing with an individual, it might be easier to send an email instead. In the letter you need to describe the specific work that is being used illegally and state where you saw that work. You should then indicate that you did not and do not to the offending party's use of your artistic work. And, finally, you should request that the offending party immediately cease using your work and permanently delete it from their website, hard drive or server. You should also include a sentence stating that the individual and/or company is forbidden from using your work in the future. 

If the company and/or individual is NOT directly profiting from your work, then you can likely send the cease and desist letter/email yourself and avoid paying an attorney to draft the letter. However, if you discover that a company and/or individual is making a direct profit from your work (e.g. someone put your photo on their t-shirt and is now selling t-shirts for $20), you should immediately contact an attorney. Why? Frankly, attorney letterhead goes a long way on a cease and desist letter plus if someone else is profiting from your work, you are entitled to a portion of those profits. While I realize legal fees can be expensive, most cities have organizations that provide legal services to artists on a pro bono or substantially reduced fee basis so you can start by reaching out to that organization.

If you opted to send the letter yourself, it is likely that the letter alone will be sufficient to stop the theft. Ensure you keep a copy of the letter and occasionally monitor the offender to ensure there is not a repeat of their bad behavior. There are occasions, however, where your letter might be met with resistance. If it is, you should decide how far down the rabbit hole you want to travel. You could start by engaging an attorney to send another cease and desist letter to the offending party. As stated above, attorney letterhead goes a long way and will likely stop any offending behavior in its tracks. If you choose this route, again, try to find a local organization that provides free or reduced legal services to artists.

In the event the cease and desist letter from your attorney is not enough to stop the bad behavior, you should evaluate whether you want to initiate legal action. As I have stated in previous posts, litigation is expensive so it should always be the last option. With that said, sometimes litigation is the best option, but other times, the best option will require you to just swallow your pride a little. Unfortunately, you cannot fight every instance of intellectual property theft so you might have to pick your battles. If a guy writing a blog that gets 10 hits a day steals a copy of your photo for a post, you may not want to call in the cavalry on that one.

One last thing to note, I am writing this post with the assumption that you had the right to take the photos. If you have taken pictures without proper authority or your images violate another person's (or company's) intellectual property rights, while you still have a right to protect your work, you should be careful about whether you might attract undesired attention to yourself that could land you in hot water with someone else.

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