If you own intellectual property (IP), such as images, photos, a logo, or the written word, you may be concerned about it being posted or shared without permission via the Internet. After all, once content is posted online, it can be difficult to track and even more difficult to remove. Fortunately, while the Internet can sometimes feel like the Wild West, online conduct is still subject to the law. Learn how copyright and trademark law in particular can help to ensure that your rights are protected.
Copyright law in the United States is governed by the U.S. Copyright Act of 1976. The creator of a work—whether it be a poem or a painting or a song—has certain exclusive rights under the Copyright Act. These exclusive rights, conferred by 17 U.S.C. § 106, include the exclusive rights to reproduce, perform, and distribute the copyrighted work. Importantly, there is no restriction in the statute requiring that infringement occur in physical space as opposed to cyberspace. To the contrary, copyright infringement can occur online.
In plain English, this means that if you hold the copyright in a photograph, only you may post that photograph on a blog or sell prints through a website. If others take your photograph and post it to their blog, or sell prints of it on their website, you may be able to sue for infringement under 17 U.S.C. § 501, which provides that someone "who violates any of the exclusive rights of the copyright owner" is considered an infringer, and is subject to various civil penalties, including monetary damages.
How can you attempt to dissuade infringement of your copyrighted work online? First, you should register your work with the U.S. Copyright Office. In most cases, registration is relatively quick and the fees are nominal. The registration has many benefits, including the ability to sue infringers in federal court. It also allows you to use the "©" symbol wherever your work appears. This symbol will dissuade would-be infringers, since it clearly communicates that you intend to protect your IP rights.
Trademarks are any word, symbol or other device used to identify the source of good or services in the marketplace. Common examples of trademarks would include the name "Starbucks," the logo for Microsoft, or the famous "LV" symbol on Louis Vuitton items. Businesses will often register their trademarks with the U.S. Patent and Trademark Office (USPTO), which is the agency that administers and awards federal trademarks. As with copyright, trademark protection applies in cyberspace.
Imagine that you own a business in Colorado that sells designer hats. The name of your company is "Charlie's Chapeaux," and you hold a federal trademark over that name and a logo depicting a stylized purple hat. Now imagine that one day, as you search for your business online, you come across another company in New Jersey that is calling itself "Charlie's Chapeaux." This business has a website that is largely purple, in the same shade as yours, and using a highly similar logo.
Clearly, this constitutes trademark infringement. Even though the "fake" Charlie's may not be physically selling hats from a storefront with your company's name and logo, they might as well be. This "fake" online store is likely to confuse at least some consumers, who were probably searching the Internet for your company's products. Moreover, if the "fake" Charlie's offers inferior quality products, then consumers who receive the hats may draw negative impressions about your business, harming your reputation over time.
How can you dissuade infringement of your trademark? Like copyright, registration is helpful. Register your mark with the U.S. Patent and Trademark Office. Registration will confer certain nationwide protection, including over the Internet, and will also permit you to use the "®" symbol wherever your mark is displayed. That symbol alone is likely to ward off potential infringers, since they will see that you have invested in protecting your IP.
When you see your IP infringed online, you might feel anger, frustration, and shock. How can you most effectively react?
The first step is ordinarily to determine who owns the website. Sometimes this is easy. If the website belongs to a business, the relevant names and addresses will be clearly listed, often under a "Contact" menu or on the homepage footer.
Other times, determining the owner of a website is a challenge. You may need to enlist the help of an IP address search tool, such as BetterWhoIs, which stores information about the identity of the individual(s) who registered a particular domain name.
Once you know the identity of the infringer, you should write a cease-and-desist letter: a short but formal letter that (i) describes the nature of your IP ownership (for instance, a registered trademark); (ii) sets forth the nature of the recipient's infringement; and (iii) demands that the recipient cease the infringement immediately.
Remember that a cease-and-desist letter must be relatively formal in tone and format. It should be typed on your corporate letterhead, carefully proofread, and typically sent via next-day mail. In other words, you should convey the severity of the offense and the fact that you intend to protect your rights.
A cease-and-desist letter need not be written by an attorney. However, sometimes a letter on attorney letterhead will attract more attention from the infringer, since it will show that you have consulted an attorney and are one step closer to taking legal action.
Before you begin sending demand letters and hiring lawyers, however, take a step back and reflect on the scope of the problem. Is the infringing use of your IP likely to hurt you or your business?
Often, the answer is yes, and you must act. But sometimes, the answer might be no. Perhaps the infringement lives on a small personal blog operated by a teenager in another state, who was using your picture without permission. In a case like that, the time and costs involved with fighting infringement are simply not worthwhile. Moreover, in the era of viral Internet content, IP owners should be wary of taking an overly aggressive stand that makes them appear like bullies. (An example of this occurred when Louis Vuitton targeted a group of students for organizing an event with a poster that included the company's logo). Be sure that your methods are proportional to the offense!
