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"I've Been Robbed!": A Practical Guide to Copyright Infringement

Here's a scenario: you're browsing the Internet, looking at various sites, when you unexpectedly come across some very familiar comics. You know all the characters. You can quote from the dialogue. You know exactly how the story ends, without even having to read it. And yes, it's even got your name in the credits. It is, in fact, your work, reproduced on someone else's site. They never even asked permission.

What do you do?

This is precisely the situation I found myself in several weeks ago, with the minor difference that the work in question was an essay, rather than a comic. The concern remains the same, regardless of the form of the piece: my work had been reproduced in full, by someone else. The essay, a piece titled "Guidelines for an (Almost) Ideal Submission", was originally self-published on the short-lived Themestream.com in 2000. It was part of my then-ongoing column, An Editor's Perspective, which offered advice to writers looking to submit work to small-press literary magazines.

The site that co-opted my essay was LiteraryAgents.com, a portal that offers paid listings for agents seeking clients as well as for writers seeking agents. As a business, this site struck me as somewhat sketchy. On the one hand, charging agents an advertising fee is perfectly fair, and the agents listed are all marked as non-fee agents. (Charging a reading fee and then doing little or nothing to promote the writer is a common way for less-scrupulous agents to fleece less experienced writers—writers should always avoid agents who charge up front fees of any sort.) On the other hand, I find it hard to believe that reputable agents comb writer listings for potential clients. This portion of the site seems to me to be more useful to the sort of unscrupulous folk looking to collect exorbitant reading fees than it will ever be to the writers themselves. For this reason, it was especially important to me to get my work and name removed from the site—I did not want to be associated with this operation in any way.

Fortunately, getting someone to take your work down doesn't have to be a complicated matter. According to Leslie Brokaw, who served as editor of Inc. Online, the first incarnation of Inc. magazine's Web site: "When I ran the Inc. site we found sites all over the place that had plucked our material. We wrote them to say that they could summarize our material and then link to our URL, but that they obviously could not post our material as theirs.... Most people were apologetic about taking it down and it was not a hassle."

Naturally, I was also curious whether or not I was entitled to sue for compensation. After all, this was a profit-based organization, and while they were not charging for my essay, they were certainly profiting from it indirectly. Contrary to what I believed, however, the answer to that question is "no," at least in the United States. According to Title 17, Chapter 4, Section 411 of the United States Code, "no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title." Without registration, authorship and ownership of the work are protected, but there is no entitlement to remuneration. Had I registered the work in question at the time of publication, I would have been entitled to statutory damages in the "sum of not less than $750 or more than $30,000 as the court considers just" (Title 17, Chapter 5, Section 504, Subsection c). This is a very important distinction in the protection offered by registered copyright, as opposed to unregistered copyright, of which American creators need to be aware.

Creators working elsewhere may find very different distinctions in their own country's copyright law. For instance, Article 34 of Canada’s Copyright Act provides that: "Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right." This holds true regardless of whether a copyright has been registered. Article 34.1 even proceeds to describe the methods whereby authorship of unpublished, unregistered works may be determined, for the purpose of awarding remedies. Remedies in this case take the form of either total actual damages or an award of statutory damages "in a sum of not less than $500 or more than $20,000 as the court considers just" (Article 38.1). It is vitally important to be familiar with the details of your own country’s copyright law. And, should you and the infringer happen to be in different countries, familiarity with the Berne Convention (a treaty on international copyright protection) will also be necessary.

At least, this familiarity is necessary in cases where legal action is warranted. As comics creators, finding our work reprinted on a business site is likely to be an exception. It will far more often be the case that the offending party is simply a fan collecting some favorite comics on his or her web site. In this case the pursuit of either actual damages or statutory awards will almost certainly be unprofitable, even when not completely impossible. Legal action in these instances will often be overkill. It's important to understand, though, that this is still an infringement on your copyright, and you are no less justified in sending the Cease and Desist letter.

Still, it's not always a good idea to be angry or aggressive when contacting these folks. Polite but firm usually gets the desired results, and friendliness may even yield additional benefits. For instance, when Donna Barr finds fans have appropriated her comics, her approach is to "contact them in a very friendly manner, as though assuming they don't have a clue about copyright. Fans readily put up a link and become an advertiser. These people may be available to be harnessed for your own good…Why pass up the chance? Don't automatically go all litigious or serious. These guys are giving you exposure—use them."

As for my own copyright troubles—I followed Leslie's and Donna's advice, and sent the company a clear but congenial letter requesting that my work be removed from their site. As predicted, my essay was removed promptly, and I received a polite note from the company president. He asked if he could link to the essay elsewhere on the web, and informed me that he would be "delighted" to work with me in the future. And while I turned down his offer (again, I'm skeptical of the company as a whole), it was still a comfort to know that copyright infringement can be corrected with a minimum of fuss.

For more information, the March 2001 issue of Rights and Wrongs, The Newsletter of the Grievance & Contract Division of the National Writers Union, offers detailed explanation of copyrights (although some of the numbers are out of date).

Re: "I've Been Robbed!": A Practical Guide to Copyright Infringe

Uncle Ghastly's picture

Without registration, authorship and ownership of the work are protected, but there is no entitlement to remuneration.

Are you positive about that? I know that in the States copyright violation is both a criminal and a civil offence but I thought it was only the criminal violation that is unactionable with an unregistered copyright, not the civil offence.

I do agree though that it's always best to use the "polite but firm" method when dealing with most violators than leaping straight for the lawyers.

Re: "I've Been Robbed!": A Practical Guide to Copyright Infringe

As with any legal issue, there are complexities and exceptions. For instance, creators have a three month leeway after publishing their work to seek copyright--if you are infringed in the first month after publication, you can still seek statutory damages, even if you don't secure a copyright until the third month.

Without registration, there is still, in some cases, the possibility of suing for *actual* damages. But this is very uncommon, for the particular reason that it requires that you prove actual damages--in other words, you need to be able to prove not only that someone was going to pay you a particular sum of money for your work, but that the actions of the infringer were the express reason why they backed out of the agreement. The rareity of being able to prove *actual* damages is a prime reason to pursue *statutory* damages instead.

I should also stress the fact that I am not a lawyer. And while I did spend a good long while reading through the copyright law in order go gain the understanding I needed for this article, my goal was to provide a "practical" guide, not a "comprehensive" guide. This information should cover most people's needs, but if you do find yourself in a more complex situation, you would be well-advised to speak with an actual attourney.

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Re: "I've Been Robbed!": A Practical Guide to Copyright Infringe

I was always under the impression that you could not register your work, and then years later, register it and sue for infringements all those years.

Well, if this is true, it would explain why anime being pirated in the USA is never really challenged until there is an American company selling it, since I would guess the Japanese don't register their works in the US until then (though they could if they wanted).