A 7-Step Battle Plan
I’m Brittany Ratelle, attorney for online business owners. Today, we’re going to be talking about what to do if someone stole your content and posted it on Instagram, Tiktok, YouTube, or any other social media platform. You’ll want to know: what can I do about this? What are my options? What should be my battle plan for moving forward and making sure that I can protect my hard-earned content, product messaging, art, and otherwise amazing work that I’ve put time and energy into creating?
What kind of lawyer would I be without a disclaimer? While I’m a licensed attorney, I’m not your attorney. This is not official legal advice. If you have any questions, make sure you talk to an attorney licensed to practice in your relevant jurisdiction.
Someone Stole Your Content
I want to preface this discussion by saying I’m sorry that someone stole your content. It is a huge sucker punch. I am a content creator myself, and I understand how it feels to put time and effort into creating, drafting, recording, and editing visually beautiful content, only to have someone steal your intellectual property. It didn’t feel good in grade school, and it certainly doesn’t feel good as a business owner who is trying to help deliver good value into the world and create original content and works of art. It’s even worse when someone has not only plagiarized but downright infringed upon your content.
In seven steps, I will show you my proven process for helping hundreds of business owners through these kinds of scenarios.
Step One: Pause
Pause. Take a deep breath in. Let it out.
Unfortunately, and especially in our digital age, getting copied is a rite of passage. It’s likely not a matter of if but when this is going to happen to you. The odds are stacked against you. That’s the nature of the digital economy, but that’s not to say that we need to be totally blasé about it and conclude that there’s nothing we can do. The bottom line is that if you weren’t making cool stuff, people wouldn’t be copying you.
Oscar Wilde said, “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.” The second part of that quote is really important. “If any imitation is going to happen, let it be from the mediocre.”
You don’t need to be flattered, but you also don’t need to give more energy and drama to this than it deserves. The last thing we want is for someone to not only take our content but also our mental health.
The experience of content theft should not keep us from having trusting relationships with vendors, customers, and students. Worst of all, it should not keep us from delivering value by continuing to create and put good things out into the world nor stop us from helping to solve people’s problems.
There’s a whole spectrum of options for what we can do when we’ve been copied or ripped off. We want to make sure that we’re not giving people power over us. Stay in that boss seat.
Step 2: Decide What You Want to Do
This is a very important part because a lot of the people who come to me are experiencing strong emotional reactions after getting ripped off. They’ve seen a competitor steal their posts, photography, videography, handouts, and questionnaires from their courses. I’ve seen it all and am sure I will keep on seeing it.
I want you to do this exercise, a chance to get everything out of your head. Brainstorm and write down a little bit of what you want to happen.
Do you want the content to be taken down? Do you want credit? Or do you just want someone to tag you?
Do you want watermarks put up that will link whatever this content is back to you? Maybe you want a business relationship. Do you want to work together? Maybe you are dealing with someone that you would have loved to have worked with legitimately.
We want to be careful about how we proceed. We don’t want to burn any bridges by coming in with a really emotional reaction instead of responding calmly from our best and highest selves.
Do you think you lost sales over it? Do you want money? Or do you just want them to take you seriously? Maybe you think that they should’ve known better and that people usually don’t change their behavior until they have to start paying fines. Do you want a licensing fee? Do you want an ongoing relationship?
If They Had Only Asked
Say that you’re an artist and a company took your surface pattern design. You would have been happy to work with this company, but now that they have committed intellectual property theft, you want your 10%, right? Or maybe you want 9% out of every pair of socks or baby blankets they are selling with your design. You want to hone in on what you want because that will allow you to really think clearly about what your next steps should be.
Of all the options I’ve named, notice that I never suggested that you go online, vent to the world, and turn that flame thrower, or rather blame thrower, on. I know that can feel cathartic. They have messed with the wrong person. There may be a time and a place for a tell-all, for you to use your audience and community to raise awareness that this is happening. That’s how people get better, right? However, I want that to be done out of your best and highest self and from a place of abundance, and not from fear, anger, and revenge.
Don’t allow more negativity into your life and your business. Don’t give the thief that much power.
Step Three: Document the Content Theft
Next, we are going to take lots of screenshots. Use your desktop because it’s going to take higher-resolution pictures. If you found one thing that they took, there could be more where that came from. Dig into the person’s social media and website. See if there’s anything else that they’ve also been taking. Determine how much has been copied and for how long it has been going on. Document everything through screenshots. There are some tools you can use. The paid version of Adobe Acrobat allows you to copy an entire website. You can then keep it in your files for whatever purposes you need.
Step Four: Reach Out
It’s time to talk to the copycat, rip-off, and infringer. Know that there are at least two categories of people that could be hurting you and taking your content. The first category consists of people I call ‘innocently ignorant’. They just didn’t know any better. They thought it was okay to screenshot your image because it was International Women’s Day and they wanted a cool graphic. There are people who are innocently ignorant of the way media, copyright infringement, and trademark infringement works. This could be a learning opportunity for them, so we want to watch how hotly we’re going after them.
Then, there are also our ‘threatening thieves’ and these are people who certainly know better and should do better, but they’re not. They’ve been at work when you walk into Target and see your artwork on a pillow. That is a true, horror story from a client. It would have been great for them to have their stuff sold at Target, but they didn’t have a deal with Target. Big companies (such as Amazon, Anthropologie, and Home Goods) have buyers and they buy from wholesalers and their departments. It’s very rare that they’re designing their own goods, even for things that are in-house brands.
Different companies, some of which are overseas, are designing and producing these goods. In a long supply chain like this, it can be difficult to determine whose actual decision it was to take your stuff and plagiarize it. So give some grace when reaching out to people you have beef with as they may have no idea that theft has occurred.
When reaching out to your copycat infringer, ideally, we would cite your own terms. Having a copyright claim statement (say, on your website), a copyright registration certificate, a trademark certificate, and watermarks on your images are all really great resources and tools. They can help us make sure we’re setting clear boundaries around the things you’ve created, which are now being used by someone else.
However, these things aren’t required to protect your brands. You have some rights just by creating things. To enforce those rights, though, you have a lot more options if you have registered your copyright. I go into more detail about this in other videos of mine regarding trademarks and intellectual property tools. If you want more information about how you can register your own copyright, stay tuned because I have a new tutorial coming out that’s going to walk you step-by-step through that process.
Begin by reaching out to the infringer privately. Give them an opportunity to make things right. Be civil. Don’t come in too hot. We’re here to collect information and also to be clear about what our expectations are regarding how we want this resolved. Again, sometimes people are clueless, not malicious.
Step Five: A DMCA Take-down
They may respond by stonewalling you, meeting you with silence. Maybe they say something like, “No, that’s completely ridiculous. We’re not taking anything down or giving you any money. We’re not giving you any credit, whatsoever.” They’re fighting you on it. Noted.
Now, I want you to do a DMCA take-down. DMCA stands for Digital Millennium Copyright Act, and it is a piece of internet law that protects you as a creator and also protects websites. It states that a website has the responsibility to be a good host and a good steward of its information. If someone emailed them or wrote on an online forum saying, “Hey, you are hosting and distributing information on your website that belongs to me and I’d like you to take it down,” the ball is now in their court. If they do not take the content down, they could be liable.
Large websites have set procedures. Usually, you’ll find that information in their footer. If you don’t see it, go look at their terms and they will likely either have a link or an email address for who they want you to contact to request a DMCA takedown. Social media, Etsy, and other large sites, which handle thousands of DMCA take-downs every day, have an established web form that they will want you to fill out. You’ll also upload any evidence that you have, and that’s where all those screenshots and certificates that we talked about in step three are going to be so helpful.
Contact Legal Directly
If you don’t hear anything and one or two weeks go by, you could also try reaching out to their legal department. When beginning DMCA take-downs on some platforms, I have felt like our communication was falling upon deaf ears. For whatever reason, their customer service does not measure up.
When we’re not getting through their queue fast enough and the matter is timely and a big deal to my client, I move forward and actually reach out to their legal department. You can usually find that information in the website terms. Find out who, where, and what their legal representation is. Find an email address and copy and paste what you put in that web form for the DMCA. Your subject could be something like ‘Attention: Urgent Legal DMCA Take-down.’ Explain why you have good reason to believe that they’re hosting and being party to copyright infringement. You will get serviced a lot faster and get people to take you more seriously.
Step Six: Cease and Desist
If all of this hasn’t really helped you get what you want, it’s time to send a cease and desist letter. You could also send one if you’ve decided you want something other than what you initially planned. Perhaps you don’t want them to just take it down as you’d also like some money or a business relationship. Then it’s time for a cease and desist, or as intellectual property lawyers call it, cheese and desist, because that’s “nacho IP.”
I know it’s terrible.
There’s not a lot to draw from IP attorneys. We try to interject humor when we can, so just go with me on this.
Beware the Demogorgon
These cease and desist letters can err on the side of being funny and can actually help you get a little PR, as some really great cease and desist letters have been shared publicly. There was an excellent one a couple of years ago when Netflix found out about a Stranger Things themed bar. The owners had of course copied a lot, using material from the bestselling TV show. Netflix sent a cease and desist saying don’t make us sick the Demogorgon on you. It was really tongue-in-cheek and I’m sure their lawyers had a fun time drafting it. The message was also something like, “Hey. You can do a run for the next couple of weeks and then you need to shut it down.” It was, after all, a pop-up bar.
There is a way that you can maintain your boundaries and standards while making sure that people are very clear about what information, products, offerings, and content belongs to you. This is not just for quality purposes. You don’t want your audience confused, thinking something is your work because it looks like yours, and then buying in. They might be seeing pixelated images or end up buying a product on Amazon that is total crap.
Try to imagine that this cease and desist will be posted publicly.
Write it in a way that you will be okay with. The tone can be funny, civil, neutral, or even sick-the-dogs-on-you scary and intense. I don’t usually recommend that coming out of the gate. I like to save that for later. Hold your cards to your chest.
If you need help drafting a cease and desist, I sell a template kit through my online shop Creative Contracts. Take a look over there if you want to know exactly what a cease and desist is supposed to look like, what you should be asking for, and how to make sure that you are clearly expressing what you want to happen.
If you send a cease and desist and no one is responding to you and it doesn’t seem like it’s being taken seriously, your next step may be to work with an attorney who will draft one themselves. A real law firm might get a little bit more attention, right? Now the matter will actually start coming up in a meeting. They will send the problem to legal and start deciding what they are going to do about this.
Step Seven: Take Official Legal Action
This is the step to take if you’ve given them opportunities to make things right and nothing has happened. You’ve reached out, asked them to stop or work with you, or asked them to sign the licensing contract. Want to know what a licensing contract looks like? See the template in my online shop, Creative Contracts. A licensing contract is key if you actually want to make money and be able to say, “Hey, this looks like this was maybe just an error in your sourcing or supply chain. Let’s make this right. Let’s sign a licensing contract and you can pay me back for all those products you were selling with my cool stuff on it.”
If none of that has worked, then your option now is to take official legal action. Let’s go from least expensive to most expensive.
Small claims would be the least expensive. This includes a brand-new option called the copyright claim. The Copyright Claims Board (CCB) is a brand-new, online-only, small claims court for copyright infringement. It’s very exciting. It only came out this last year through the CASE Act, so I haven’t had a chance to guide any clients through it, but I would like to. So if you have a great case where it’s really clear that someone took something of yours and it’s a company that has the money to make it right, please reach out. You can find me on Instagram or through email at firstname.lastname@example.org. I would love to help you through this because I’m really excited about this court’s ability to kind of even the playing field. Normally, infringement lawsuits are very expensive, which makes them cost-prohibitive for smaller creators.
Mediation, Arbitration, and Litigation
Next would be mediation and arbitration, which are going to be cheaper and faster. Those can be virtual or in-person. The last step is litigation in which you file a lawsuit. These cases rarely go to trial, but they could potentially. So I want to pause here for a reality check.
No matter how many episodes of Law and Order you have seen, you’re probably not emotionally prepared for the time and expense real litigation demands. Intellectual property litigation particularly can be very expensive. Tens of thousands of dollars can be spent in an instant just to get the ball going and get discovery going. You will be spending much more if you actually have to take a case to trial. Practically speaking, that is why people get away with taking your stuff, even when you catch them in the act.
Here’s a really important note. You are not allowed to start an infringement proceeding in the U.S. without a copyright registration in hand. This is not true if you’re participating with the Copyright Claims Board (CCB). If you’ve just submitted your work to be registered at the copyright office and the registration certificate is pending, you can file. If you plan on filing a lawsuit and getting things like statutory damages or attorney’s fees, you cannot do that until you’ve actually filed a registration certificate.
Register That Copyright
This is another reason why it’s really important that content creators and online business owners make sure they are protecting their amazing work with copyright registrations. If you haven’t done that for your work, make sure that you’re using the tools available here to get your work protected so that you can go after someone when they are being shady or ‘sus,’ as my kids would say, and ripping off your content.
Please be careful out there. Make sure that you’re not the person on the other side of someone’s theft.
Karma is real. Don’t steal.
Don’t be the person that’s doing this to someone else.
Someone Stole Your Content
If you want more information on how to protect your work and make sure that you are putting up good boundaries around your online courses, digital products, books, music, art, workbook, or any of the other offerings that you might be creating, check out my YouTube channel. There, you’ll get free tools and the best information to help you and your growing online business.
Intellectual property theft may be common, but that doesn’t mean we should get used to it. I hope that you are now convinced that there are actions you can take to get the results you want. Fight back. You work hard to make the content you create, and it is yours.
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