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What a [good] Lawyer Does When You’ve Been Copied

woman looking up what to do when you've been copied


In this post you’ll learn, in my opinion, what a good lawyer does when that dreaded moment hits: you’ve been copied. Spoiler alert: a good lawyer will just walk you through your options. And those options are:

  • contacting the infringer,,
  • DMCA takedown,
  • sending a letter,
  • filing a lawsuit, and
  • doing nothing.

Option When You’ve Been Copied: Contact the Infringer Yourself

You would be surprised how little people know and understand about copyright law and what they can and can’t do. So it’s very possible that, even when you’ve been copied, whatever the infringer has done was an honest mistake.

Depending on the severity of what’s going on, your lawyer might tell you to contact them yourself. The message will consist of something like “Here’s what I own, here’s what you’re doing, take it down.” Something like that.

Next Option: DMCA Takedown

The next option of course is what’s called a DMCA takedown. You’ll see this at the bottom of tons of websites like Facebook, YouTube, Etsy — any platform where users can upload content. Those types of sites usually have some kind of IP policy, copyright policy, or DMCA policy. There, you can submit a takedown request. It’s protection for the website owners so that they don’t get sued for copyright infringement because of what somebody else did or what somebody else uploaded.

The takedown process is as simple as filling out that form and saying what happened, what you own, and what needs to be taken down.

A Stronger Option: Cease-and-Desist Letter

Nothing says “stop it right now” like receiving a strongly-worded letter from an attorney.

Now, not every letter has to be a FIRE AND BRIMSTONE and WE’RE GONNA SUE THE CRAP OUT OF YOU, mean, YOU’RE INFRINGING-letter. There’s mean, and there’s effective. (Side bar: Given the option, I’ll go with effective.)

A good attorney will walk you through it. “Okay, tell me about what’s happened, do you know about this company or person, what are the circumstances.” It’s often more than just “okay let’s send a letter right away.” A good attorney walks you through what’s going on and the tone that the letter should have in order to get whatever your ultimate goal is. If your ultimate goal is for the infringer to take down whatever it is, then the attorney will walk you through how to best achieve that ultimate goal.

Another Option: Filing a Lawsuit


Filing a lawsuit is always an option. Again, a good attorney will talk you through what’s going on and what the best step forward is. Oftentimes a lawsuit is not the first step forward, but sometimes it is, so that’s definitely something to talk through.


And then…. there’s do nothing.


Ultimately, it’s your decision whether you want to spend time and agony and expense to go after this infringer. Again, it depends on what’s going on. What have they infringed? If it’s something that’s really valuable to you and that’s at the core of what you create, it might be worth doing something.

But sometimes, in certain specific circumstances, a client will elect not to do anything.

So again, an attorney should walk you through all of these options. She should discuss which of these is the best plan of action for you.

I hope that helps you understand what a good attorney will do when you’ve been copied.


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A Legal Checklist for Selling on Etsy

Etsy is the first place that pops into mind when I want to find a special gift or something created by a small business owner. Want to open up shop yourself? This month’s blog post introduces Spear IP’s Essential Legal Checklist for Selling on Etsy.

Here’s a brief description of the topics you should expect from the Essential Legal Checklist for Selling on Etsy.

Business Structure

A lot of folks find themselves weighing the pros and cons of sole proprietorship versus something more structured, like a limited liability company. This list has some factors that could sway you one way or the other.

Tax and Licenses

You know e-commerce and the collection of sales tax was a hot topic with The Supremes last summer. Have you determined when and where you need to charge sales tax, if at all? What about a business license?

Trademark

By now you know a trademark is that brand name that everyone knows you by. The Essential Legal Checklist for Selling on Etsy walks you through a few general trademark considerations (and some Etsy-specific considerations).

Copyright

Copyright law governs not only your typical creative works, but some not-so-typical creative works. Registering with the Copyright Office, getting your contracts in place, and using contractors are all topics that are covered in this legal checklist for selling on Etsy.

Photographs and Artwork

Copyright and right of publicity are two different things. (Remember the client query, “A celebrity is wearing my brand“?) This checklist will make you think through using photographs and artwork properly.

Policies and E-Commerce

It’s hard to hold a customer to a return policy if you haven’t posted that return policy. Posting policies and truthful descriptions of products are both things to consider when opening up shop on Etsy.

And there you have it. Get the Essential Legal Checklist for Selling on Etsy here.

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Repurposing Art: A Look At Fair Use (& Fictions)

repurposing art

Repurposing art is a real temptation for professional crafters, visual artists, and Etsy-sellers alike. What some call mere inspiration, others consider copying. Where’s the line between the two? Below are some of the rules at play for repurposing art, or using elements of creative works owned by someone else in a new creative work, and some common misconceptions when it comes to fair use.

Continue reading “Repurposing Art: A Look At Fair Use (& Fictions)”