What to do when people copy your stuff - 11

This is Law and Wit, Episode 11: What to Do When People Copy Your Stuff. Welcome to Law and Wit, Creative Counsel for Entrepreneurs. I'm your host, Brittany Rettell, mother of 4, entrepreneur, naptime lawyer, and attorney for creative entrepreneurs. I'm here to share inspiration and action so that you can tackle your business blocks and confidently own your business in every sense of the word. Thank you so much for being here. Hello guys, and welcome back. I'm so excited that you're here and here for this super important topic. Honestly, it's something that I get asked about the most, and it's what to do when people copy your stuff. And you know, I, when I was thinking about what to title this, I also thought of what to do when people steal your stuff or rip off your stuff. And those are all kind of interchangeable. But I just want to preface by saying when we're talking about copy your stuff today, I think it's also really important to get into a little bit of the mindset on what it means to be a creative, to make things and actually come up with something original and what's maybe original and what's a little bit of the myth of originality, because I think that's helpful as we talk about this and what real world actions and tools and tips and mindset that you can get in so that you're in a better place to make your art and make your business successful and move forward. Also what the limitations are, because we need to be real here. So that's a, you know, kind of a broad overview of what we'll be talking about today. I do want to throw my little disclaimer in there. While I, Brittany, am a licensed attorney here in Utah where I live and practice, I'm not your attorney unless you want me to be, in which case please hop on over to my website, BrittanyRattell.com/services, and sign up for a little 20-minute free chat with me. We can do a consultation by phone or Skype and we could talk about your business, maybe what some of your problems are, what's something that's keeping you up at night, maybe some myth that you heard on in a Facebook group or some advice you got from a well-meaning friend or uncle or someone else who's an attorney and you're wanting to know, is that legit? Is this something you need to be worried about your business? And how can we— how can you work with someone who can maybe help you solve this problem so you can move forward? So anyway, that's how you— if you want to work with me, those are the— that's the best way to work with me, is to sign up for consultation, or you can always email me also. I'm at hello@brittanyrotell.com. Okay. So with that out of the way, let's get going. Okay. So what to do when people copy your stuff. Um, the first thing I want to talk about here is that, um, I want to be mindful that, um, the first time it happens when someone copies your stuff, and likely we've all remembered this down from our earlier, earliest days, you know, in grade school and people copy your stuff. If someone copies your homework or copies a joke that you did or something else about you, um, it can— the most primal need and reaction is probably anger. You know, we get angry, we get hurt, we take it personally, especially if someone's doing it, if you think, maliciously, in a way that's not giving credit, that's not recognizing your creativity or expertise, you know, the beautiful things that you came up with here in your head and then you expressed in some way. So I think, you know, a lot of this goes back to our roots in creativity, and especially if you make your money as a creative and you define yourself as a creative, that's part of your identity and who you are. I completely understand that when you— when someone steals your stuff, when someone rips you off, um, you can really feel hurt. And that can be a real pain that you feel like, um, is valid and, you know, deserves to be vindicated and have justice and have your day in court and all the rest of the things. So I don't want to, um, brush aside those feelings because I totally understand that.. But I also want to talk a little bit about the realities of creative work, and especially the digital age in which we live, and where creative work can be shared so easily. And we have this huge, giant database at our fingertips in terms of music and photography and graphic design and all different mediums, and the spoken word and the written word and visual. And so much of it that I think it's a little bit— we haven't really quite caught up with the reality in terms of how original your work might be, and that much of what we consider as original might not actually be, especially in terms of a legal definition. That doesn't mean that— discount it in any way that it doesn't have your special secret sauce on it, and it doesn't mean that you shouldn't be making money from it or monetizing. But in terms of what you should put your energy into going after, or in terms of looking for repercussions in terms of someone copies your work, that there may be some limitations on that. So I just want to at least preface that and put that little bug in your ear. I recently read a book that I highly recommend if you are a creative and you're working as a creative, and it's called Steal Like an Artist. And it's a really quick read, and pretty much the whole thing is highlightable. It's one of those books. So I think I got it on my Kindle, but I think I'm gonna have to buy it because it's just my notepad of, you know, my online— one of my my phone that has all the stuff I copied from it is just overflowing. But there's a couple of great quotes from there that I wanted to share. And one is from David Bowie, rest in peace, David. And so we'll quote him. And he says, "The only art I'll ever study is stuff that I can steal from." And I think that's such an interesting idea, you know, and we're talking here stealing like an artist in the aspect of you don't take someone's work, you don't take someone's photograph online, do a screenshot and put it up on your website. Like it's your work. That's not what we're talking about here. What we're really talking about is being inspired and studying and using the influences of other people to try to influence your work. And I think we can all agree that that's part of being a creative, is, you know, being exposed to different mediums and art and ideas and philosophy and architecture and color and light and all of that. And I think that's what, you know, in this book is talked about a lot, is recognizing those influences, celebrating those, making sure that you're exposing yourself to it. But then when it comes down to actual workflow, that you be careful about how you're using those influences. Meaning, and a lot of the tips that I thought were really helpful, especially in the creative realm, where when it comes down for you to do your own art and your own work, you know, maybe step away even from having a digital space. So, you know, browse and do all stuff online, you know, have an inspiration folder. But when it comes time to sit down and illustrate something, um, maybe just have pen and paper and be outside, you know, step away from your desk. When it comes down to write something, um, you know, certainly research and think about things and talk it over and whatever your process might look like. But when it comes to write your blog post, um, make sure that it's a blank Word document, or even better, do it on pen and paper and then type it up afterwards. And I think there's something to be said for looking for those analog ways of connecting to our work that can really protect its integrity and making sure that we're being authentic and we're using all of our senses and not relying too much on copy and pasting other work where we would get in trouble, even if we're not trying to be malicious and copy other people's work. So those are some of the tips that I got from the book. The other quote from the book that I really love is that from T.S. Eliot, and he says, immature poets imitate, mature poets steal, bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that which it was torn. And I think that's the place that we want to be at, where you have so many influences, you have woven this amazing tapestry of everything all together that at the end it is completely unique and separate from any of the other influences, from any of those little strands of yarn that you originally sought out and were inspired by other people. So those are kind of some thoughts as you go about creating your own artwork. And then I want to talk about what to do if you are on the opposite side of the coin. Basically, what if someone has taken your stuff? And here what we're really talking about is like full-out people ripping you off. Copyright infringement, stealing, it's known by all of those things. People copying you. And this is where someone is not clearly being inspired or, you know, trying to flatter you with their work, but is, is this, you know, wholesale copying what you have and trying to sell it and pass it off on their own in order to make money, usually. So, and here I want to talk about there are 6 steps that you can do in terms of where in the timeline that you can do to respond to this. The first is that I want you to take a deep breath and relax. I know, as I talked about, your initial reaction, you're going to be angry, you're going to be mad, you're going to take it personally, maybe. Probably. You're going to think that, like, "How could someone do this to me?" or, especially if it's someone you know, even if it's someone you don't, some stranger on the internet, it can feel like a real violation of yourself and your privacy. Especially depending on how personal your work is. You know, if you have a personal brand and someone has ripped off your bio or your headshots or, you know, your sales copy from your page word for word, you know, these are all incidences of things that have happened to clients of mine. It can really hurt. You know, I can understand how that can really feel like the core. But I want you to, you know, dig deep, take a step back, realize that this will pass. That it happens to pretty much anyone who makes anything, and especially anyone who gets into business and making anything. And, you know, as to quote my friend The Allison Show, who she gets copied quite a bit online, is that if no one tried to copy you, you're not doing it right. So not that that makes it right on them, because people are responsible for their own choices, but in terms of what you can do and what you can control, which I think going back to those fundamental principles of the only thing we can control in this world, this crazy world of ours, is ourselves and our only reaction to stuff. Well, here you go. What can you control? You can control your mind and your emotions and the story that you're gonna tell yourself about when this happens to you. So the first is relax, take a deep breath, don't do anything rash, because that segues into our next tip, number 2, step number 2, which is document. And the problem that I see is that a lot of people don't do step number 1. They don't take a moment. They immediately get so angry that they jump on the internet, they start flaming people, they start, you know, telling their whole audience, look what just happened. They're posting screenshots, um, and they have not— they don't do step number 2, which is to document the rip-off. Okay, screenshot it. Find out where is this being posted, what is the website, what are the social media platforms. I want you to screenshot like crazy. I want you to print them out and create a folder. If it looks like it's a big enough problem that you need professional help with this, you know, hire someone who forensically does this kind of stuff so they can help you document the case. Um, you know, look for other infringement. If they've stolen something of yours, it's likely they've stolen something else. Why would they stop there? You know, might as well. Um, so keep on going. And the reason why is that if you go out publicly, um, and let people know that this has happened before doing that step, then this could all disappear. And maybe that's what you want. Maybe you just want it to go away. Um, But if you want to have any leverage later on, if you're worried that they might just post it back up, if you want to take legal action to get them, then you certainly need to have that documentation. So, so you can preserve the most options for you and to have the most tools in your toolkit, please document and do it well and thoroughly before you go postal, before you go online and, you know, tear into them, which I understand. You're angry. I understand. I totally understand. But First, first, let's take care of business. Okay. Step number 3 is to reach out privately to the infringer and let them know that they have taken something, that copying is not okay. And ideally, you can attach some of the evidence of what you've taken and/or you can attach some of your terms. If you have terms of service for your website or terms and conditions, they're interchangeable, then that kind of text would be helpful to be like, hey, 'Actually, my courses are only for personal use and they're not supposed to be up on, you know, Scribner. Like, they're not supposed to be posted on a file-sharing website or on your website. So this is actually a violation of my terms. So can you please take that down? You'll see here in this paragraph right here,' and you can highlight it for them, make it, you know, idiot-proof, that this is a problem. So, or you can show them your copyright disclaimer language or something else. So sometimes people are just dumb. They really are. Sometimes people are just clueless and they have not thought it out in their head that that belongs to someone else. And certainly when called out on it, they feel embarrassed and they'll take it down, or they'll step back and realize like, oh, that you're right, that was too far. Like we talked about, it's okay to be inspired by someone, but like it's not okay to copy and paste and rip off completely. Um, you know, you should come up with your own thing, you know, do the work, don't steal someone else's work. So, yeah, always give people the option of privately reaching out. So if you can't find someone, an email address, here are some tips to try to find that. Look for— do a WHOIS lookup on their domain website. If you don't know how to do that, you know, go Google that. Look to see if there's a business entity and you can see what state they might be registered in. You could try to look that up. So if they have a DBA, Doing Business As, or an LLC or something else, they will probably be registered in their state and that will give some contact information for them or where a registered agent would be. Those are some ways you can try to find people if they're being sneaky and they don't have, you know, a clear contact form on their website or something. Okay, and that brings us to step number 4. If that doesn't get you anywhere and you want to move ahead with getting your stuff taken down and getting back to the way it should be, is to do a DMCA takedown. And a DMCA stands for the Digital Millennium Copyright Act, and this is a tool that's been around for almost a decade now. That's basically a procedure that online service providers have to honor when you approach them and say, like, hey Google, I noticed that in your search engine results, there's one of your results is someone who's copyright has clearly infringed on my information. I'd like you to de-index that result. I'd like you to take it down. This applies to any of your major online service providers. Anyone like Facebook, Google, Instagram, Reddit, anyone— YouTube— anyone who is providing a platform where people put content on, is interacting content, our government, the United States government, has told them, look, you have a responsibility to create a safe environment, and, you know, we're gonna give you safe harbor, and meaning we're not gonna blame you if there's bad stuff on there, if there's copyrighted stuff, as long as you respond to people when they tell you, look, this is a problem and here I can show you this is my stuff. You shouldn't be posting this. This is illegal. It's infringing on my copyright. You take it down. So, and most of those websites, they have, if you Google or go to like, you know, the support, you'll find tabs and they'll have a really clear procedure in terms of what you need to write out, what information they need to have, and they'll do it within like a day. You know, Google claims that it can get most of their stuff off, they can respond to requests within 6 hours. So it's a really fast expedited procedure in order to quickly, you know, stop the bleeding in terms of people are going to this, you're losing traffic, people are being confused, and you want something to happen immediately so that you can stop the problem. So it's also sometimes called deindexing, but it's a very similar procedure. And as a side note, if you have been the victim of one of these, if someone took down your stuff and claimed it was copyright, there's also a counter-notice procedure, kind of like an appeal process that you can do. So know that that's an option if that happens to you, then you can also appeal it and say, look, actually, because of these reasons, I don't believe this is copyright information. So there's been a couple organizations who have kind of looked into, is this chilling speech, meaning are people kind of taking advantage of this and abusing it? And while that's always been a worry and a concern, the research says that it doesn't appear to be. That, you know, there's been a few, there's been some requests, and it's funny because Google actually has listed a couple of those where like a movie studio claimed that IMDb, where the IMDb page for a new movie and the poster was copyright infringement, and Google said no. It was like, go home, people. Like, come on, what are you doing? So, um, and I love that. I love that they just pushed, completely pushed back on that. The studio was like, no, that's not copyright infringement, that's a legitimate page of someone linking to your movie, um, which is probably creating more buzz for a movie. But it's maybe it was, you know, they wanted to control the release, or probably what most likely happened is had negative reviews on it, and they didn't want people to be Googling that and for that to be what they were reading about. But sorry, like, sorry if your movie sucks, but sorry not sorry. So yes, uh, you know, own up to it. So okay, a little bit of a sidebar. All right, so we're up to step 5. Um, so step 5 in our process is to send a cease and desist letter. This is sometimes also called a demand letter or a C&D letter, but basically this is the kind of scary letter that you send to someone that kind of summarizes our previous steps in terms of that you've reached out, we have a problem, Houston, you did this, this is why it's a problem because of this policy or this copyright that I've registered or this trademark that I have and/or these user terms for this product or service, digital product or service or website, that's where you would include all the information. And this, you can do it yourself, you certainly can and I know people have and they've gotten some good, you know, reasonable results from it, you can also hire an attorney to do it for you. I will give you the caveat that most of the time people get better results when they hire an attorney. Not only are they able to cite the law usually in a more coherent way that's more intimidating and more— and it has, you know, it's more forceful, but it's also taken more seriously by the recipient. And, you know, this makes sense if you were the one who got a letter and it looked like it was homemade or do-it-yourself, or it had, you know, it was on attorney letterhead and it had a real, real attorney at the top that you of course Googled and it looks like, oh yep, they do do work in business or copyright law and they probably know what they're talking about and they cited a statute here. Which would you take more seriously? So something to think about. I understand when money's tight, but just something to think about in terms of if this is a major product of yours, this is something that means a lot to your business, then it may be worth it to at least talk to an attorney and price that out and see, hey, what would that look like for me to write, you know, a couple-page— this is— these are the issues I have, this is what I'm concerned about— and hopefully find someone who can do that reasonably for you. I do do these for people, so if you're interested and unfortunately this has happened to you, again, reach out to me like I talked about in the beginning of the episode, and we can, we can talk about what some of your options are in terms of getting this taken care of. And the number 6 step is if it's serious enough of a violation and you didn't get a good response from your cease and desist, and basically this is what the last kind of paragraph, the meat of your cease and desist will have, is to move forward with mediation, arbitration, and litigation. You know, "I'm taking you to court. I will have my day of justice." Now I will let you know here that if your experience with the legal system has been Judge Judy and John Pamela Anderson novels, then I'm sorry to have to burst your bubble. The timeline that you presented in those and maybe lots of Law and Order episodes is not probably very realistic of the timeline and the expense involved with taking someone to court in modern-day litigation in 2018. So I will say that while it's an option and you should be prepared to use that option, and certainly a good, well-drafted cease and desist letter will list that as an option and it should have real teeth behind it, otherwise, you know, what good is it? Know that it's an expensive course of action. So it's not one to be taken lightly, and certainly it's not one that you want to just bandy about like, "Oh, I'll just take them to court and it'll be no big deal," because it's usually expensive, especially the discovery process is expensive and has a long timeline, especially depending on how extensive violations are and what you're talking about. But it's still there, and there are people who file copyright infringement lawsuits every day in federal court. —because it is actually federal law—and so it happens. So don't think that, like, "Oh, I could never do that." You could. You certainly can, and there's attorneys like me and others who work in that area. But know that, yeah, it is the end of the rope, and unfortunately, we hope we don't have to get to that part of the rope. So the other options you might not be as familiar with are mediation, and that's where you sit down with the other party and you try to work out a solution. The best mediators, the ones that I like to recommend when we do mediation, are attorneys or former attorneys. A lot of them could be former judges. Those are usually the best mediators because they know and are so familiar with the law that they can do a really good job in coming up with reasonable solutions and honestly reality-checking people and calling them on their BS, which is a lot of what mediation is. And honestly what a lot of going to court is, is that people think that, "No, if I just told my story, surely I will prevail." Honestly, the judge doesn't really care about your story. He doesn't, um, he or she doesn't. They, they care about the statute and what does the law say and do you have evidence. And this is, you know, this is a sad story, but he said this and she said that and I don't know and throwing up my hands in the middle. So, um, it's really good to have as much concrete if you have. Again, which is why we talked about documenting the rip-off, having those policies and contracts, procedures in place so that it's very clear this person willfully disobeyed the law and they stole your stuff. And the other one is arbitration, which is similar to mediation, but it's binding. So basically, you agree with this other person that you're fighting with that, look, we're going to go to this person and it's going to be binding. Whatever they say, we're going to do. So it's almost like litigation, but it's quicker and it's cheaper. And again, the best arbitrators are usually judges or former judges. So, okay, so that's kind of the quick rundown again of those 6 steps. So Now, note that nowhere in there did I recommend publicly shaming or flaming on Facebook or ranting about the issue in a super public way, you know, going on your Instagram stories and doing all of that. I know people who've done that. I know— I'm sure it probably made them feel better in the moment that they could call and they got, you know, lots of support from their crew, from their followers of like, "I'm so sorry," and, "Dang it, that must be frustrating," and whatnot. And, you know, I'm sure there's a place for that, but I, um, I can also see how doing those reactions, especially having that kind of reaction initially in the process, can be really damaging to your options later on, especially if you haven't documented what's going on or really researched the issue in terms of, huh, you know, that's interesting, why is this my artwork showing up here? And I'll give you an example, um, and I was tagged in this, this happened a couple months ago, that, um, an artist who makes these beautiful floral prints went on her Instagram and said, I walked into a local, you know, actually no, it's like a chain, you know, home furnishings store, and I found my artwork in like the frames, you know, it was like a stock photo that comes with a picture frame. And I was just floored that they would have stolen my artwork and put it in there. You know, she was just super mad. She took a picture of it, posted it online in her account. Everyone went in and, you know, agreed with her, like, that's horrible, I'm so sorry, I'm never gonna shop at that store again, you know, yada yada. Fist bump for you, you can do it. Um, all, you know, normal reactions to that. So, and, um, then, uh, someone reached out to me and said, like, Brittany, can you help? And, and so I did. Um, and, um, but what I found after doing a little digging into the store and to that particular print, which she actually had some copyright protection for, was that it was released from a company that she had licensed some of her work to. Um, and because of just some a communication error. And talking to her agent, who was the one who was working with that licensing house, she didn't know that they were doing basically a run of these again. And so it really wasn't copyright infringement. The store wasn't stealing her stuff. The person who was making the stuff, which is actually different from the store who's selling it on the shelves, you know, obviously, as you realize, you know, if you walk into Target, Target doesn't make all that stuff. You know, the other people, all, you know, tiny little stores in and around China are the ones who make that stuff. So it's good to calm down, have some clarity in the moment, and think about, is this really the reaction I want to have against this retailer? Do I want to make claims? Do I want to turn a problem of copyright infringement into a bigger problem of defamation, which is when you say something about someone that could be untrue, and that can be labeled as actually malicious because you're making claims that aren't substantiated or that can affect their business or business goodwill. So when you're talking about major retailers, that could be some serious damages there. So anyway, just something to think about, and also think about how it might affect any contracts that you might have with people in terms of disclosure. If you've ever seen a non-disparagement clause, those clauses basically mean that, that you can't badmouth people. So those are all things to keep in mind when you have— want to have that visceral reaction, is to Take some deep breaths, do some yoga, breathing, meditation, scented candle bath, whatever it needs to for you, self-care, to try to regulate a little bit about that and then come up with a game plan that hopefully involves some of these steps. So with that, we'll close up today. I want to remind everyone that if you haven't given me a review in iTunes yet, I'd really, really appreciate that. I'm still a new show and that's the best way for people to be able to find me and for me to be able to spread this content to other entrepreneurs who might help other creatives who have these kinds of questions and concerns in their businesses and are wondering what can they do. Um, so that's my whole goal here is to give you digestible content, um, to keep on making this stuff free so that it's available for you so that you can get the help that you need and move forward with your business and confidently own your business in every sense of the word. So thanks so much for being here. Um, if you're interested in show notes, I'll link those on the page. So it'll be BrittanyRettell.com/11, as in episode 11. So 1-1. Yeah, we're in double digits now, guys. That's, that's legit. Um, and with that, I'll, I'll link any of the links I talked about in the show, um, and any other resources that might be helpful as you're talking about, um, these issues. So, you know, I talked about the DMCA takedown and the Steal Like an Artist, and I'll link to all that stuff up there. So please visit the show notes page for more info, especially if if you're the type of person who likes to have things written down so that you can check it on later on. If you love the show, share with a friend, rate me in iTunes, and I'll see you next week. Thanks a lot.