Intellectual property (IP) litigation can be a significant and costly challenge for individuals and businesses alike. One common issue is aggressive IP enforcement by firms known for pursuing copyright infringement cases. Dealing with these firms can be both time-consuming and financially draining. However, there are proactive steps you can take to minimize the risk of becoming entangled in such litigation. Here’s how you can protect yourself and your business.
Here are several strategies to help your business avoid becoming embroiled in such disputes:
Educate Yourself
Understanding the nature of intellectual property and its various forms is fundamental to safeguarding your business. Intellectual property (IP) protection encompasses four primary categories:
- Patents: These are government-granted exclusive rights to an inventor, allowing them to exclude others from making, using, or selling their invention for a specified period, typically 20 years from the filing date. Patents cover new inventions or discoveries, including processes, machines, articles of manufacture, and compositions of matter.
- Copyrights: Copyright law protects the original works of authorship, such as literary, dramatic, musical, and artistic works. This protection grants the creator exclusive rights to use and distribute their work, typically for the author’s lifetime plus 70 years. Copyrighted materials include books, films, music, and artwork.
- Trademarks: Trademarks are distinctive signs, symbols, or expressions used to identify and distinguish goods or services produced by a particular entity from those of others. Trademark protection prevents others from using similar marks that could cause consumer confusion.
- Trade Secrets: Trade secrets consist of confidential business information that provides a competitive edge. Unlike patents, trade secrets do not require registration but must be actively protected through confidentiality agreements and security measures.
Purchasing Photos from an Appropriate Source:
When purchasing and licensing photos that are owned by someone else, it’s important to follow a few key steps to ensure you are legally protected and have the appropriate rights to use the images. Here’s a guide on how to do it:
- Identify the Source:
- Use reputable stock photo websites (e.g., Shutterstock, Getty Images, iStock, Adobe Stock).
- Directly contact the photographer or the agency representing them.
- Understand the License Types:
- Royalty-Free: Pay a one-time fee and use the photo multiple times without paying additional royalties.
- Rights-Managed: Pay based on specific use (e.g., duration, geographic location, purpose).
- Exclusive Rights: Purchase exclusive rights to ensure no one else can use the photo.
- Editorial Use: Editorial Use licenses are intended for use in news articles, blogs, and other non-commercial, informational content. These photos often feature recognizable people or brands and cannot be used for commercial purposes or advertising.
- Review the Licensing Agreement:
- Check what is included: usage rights, restrictions, duration, and geographic limitations.
- Ensure the license covers your intended use (e.g., commercial, editorial, promotional purposes, digital, print).
- Negotiate Terms if Necessary: If dealing directly with photographers or agencies, negotiate terms that fit your needs.
- Make the Purchase:
- Complete the purchase through the stock photo site or directly with the photographer.
- Keep a record of the transaction and the license agreement.
- Attribution Requirements: Some licenses require you to credit the photographer. Make sure to comply if applicable.
- Compliance and Monitoring:
- Ensure ongoing compliance with the license terms.
- Monitor the usage to avoid any potential legal issues.
- Legal Advice: Consult with a legal professional if you are unsure about any part of the licensing process.
Register Your Content
As mentioned before, copyright trolls produce a large amount of content on popular topics. They might challenge your copyright in court, claiming it’s too similar to their registered works.
Imagine you write an original blog post on a certain topic without using any third-party sources. However, because you didn’t copyright it, a troll could copy your work, register it, and then sue you for infringement. Surprisingly, their copyright registration would give them a legal edge over your creation date proof.
Another issue arises if you create something that looks very similar to someone else’s work and don’t register it. A copyright troll could find you and sue for infringement, even if your content is original. This loophole often lets copyright trolls win.
Attribution Does Not Prevent Lawsuits
Many people and businesses think that simply giving credit is enough to legally use copyrighted material, but that’s not true. You can still be held liable if you use someone else’s content without their explicit permission, even if you acknowledge them as the owner. This is especially tricky with copyright trolls, who often create and register content just to enforce their rights aggressively and wouldn’t give you permission to use it.
Consider Creative Commons
You can still use existing content without getting into trouble with copyright trolls by looking for material under the Creative Commons license. For instance, a site like PhotoBucket is excellent for finding images and videos that you can use without the risk of being sued.
What makes PhotoBucket special is its clear policy stating that publicly shared content is free to use, as long as it’s not for commercial purposes.
Additionally, platforms like Flickr™, Instagram™, and YouTube® have Creative Commons search filters, making it easy to find content that you can use safely without worrying about legal issues.
Monitor Your IP
To effectively defend against potential IP infringement claims, maintain comprehensive records of your intellectual property usage. This includes documenting the creation, use, and any public disclosure of your IP. Establishing a timeline and maintaining detailed records can provide evidence of your rights and usage history if a dispute arises. Regularly review and update your IP portfolio to ensure all assets are accounted for and protected.
Understand Copyright Laws
A thorough comprehension of copyright law is essential for avoiding infringement claims. Copyright protection applies to original works of authorship, encompassing a wide array of creative expressions such as literary works, music, art, and software. Ensure that all employees and contractors are educated on what constitutes copyrightable material and the legal implications of unauthorized use. Implement internal policies and training programs to foster compliance and awareness.
The Importance of Licensing
One of the most effective ways to avoid litigation is to ensure that all the content you use is properly licensed. This includes images, videos, music, and any other copyrighted material. Here are some key steps to take:
- Identify Your Needs: Determine what types of content you regularly use in your business. This could be images for your website, music for promotional videos, or articles for your blog.
- Understand the Licenses: Ensure you understand the terms of the licenses you purchase. Some licenses may be limited to specific uses, while others may be more comprehensive. Always read the fine print.
- Maintain Records: Keep detailed records of all licenses you purchase. This includes receipts, license agreements, and any correspondence with the content provider. This documentation will be crucial if you ever need to prove your rights to use the content.
Proactive Licensing Strategies
- Preemptive Licensing: Instead of using content first and seeking licenses later, always purchase licenses before using any content. This proactive approach ensures you are always covered and reduces the risk of receiving a demand letter.
- Bulk Licensing: If you frequently use content from the same source, consider negotiating a bulk licensing agreement. This can often be more cost-effective and ensures you have the necessary rights for all future uses.
- Legal Review: Have your licenses and usage policies reviewed by an IP attorney. They can help ensure you are fully compliant and that your understanding of the license terms is accurate.
- Educate Your Team: Make sure everyone in your organization understands the importance of licensing and the risks of copyright infringement. Provide training on how to properly source and license content.
Responding to Demand Letters
Even with the best precautions, you may still receive a demand letter. Here’s how to handle it:
- Stay Calm: Receiving a demand letter can be stressful, but it’s important to remain calm and not act impulsively.
- Verify the Claim: Verify the legitimacy of the claim. Check your records to see if you have a license for the disputed content.
- Consult an Attorney: Contact an IP attorney immediately. They can help you understand the claim, your rights, and the best course of action.
- Negotiate: If the claim is valid, your attorney can help you negotiate a settlement. Settling out of court is generally more cost-effective than litigating.
What Should You Do If You Get a Letter From a Copyright Troll Firm?
If you receive correspondence from a firm specializing in aggressive IP enforcement.
- DO NOT engage in direct communication without legal representation.
- DO NOT sign any documents or make payments without consulting an attorney.
- DO NOT provide any written statements or admissions regarding the use or dates of the content in question.
- DO request the copyright registration certificate to verify the claim’s validity.
- DO document detailed information about the content’s source, usage dates, and context of use on your platforms. This includes whether the content is still accessible online and the manner of its display.
Conclusion
Avoiding IP litigation with copyright troll firms requires a proactive approach to licensing and a thorough understanding of copyright law. By purchasing licenses proactively, maintaining detailed records, and educating your team, you can significantly reduce the risk of costly legal battles. Should you receive a demand letter, consult with an experienced IP attorney to navigate the situation effectively.