Norton Law Corporation Blog Etsy Business Trademarks and Corporate Formation

How to Protect Your Etsy Business

The idea for this post came from a couple of different sources. First of all, I’m getting married in just over a month, and my fiancee and I have been ordering quite a few things from the handmade capitol of the world over the last few months. Secondly, I recently read an article a couple weeks back about Urban Outfitters, H&M, and Forever21 allegedly ripping off the designs from a number of artists on Esty—I’d post the link, but I forgot to save it (and in true lawyer fashion, I also can’t really comment on whether those companies engaged in that kind of activity). So I figured, why not make a post on how shop owner on Etsy can best protect themselves not only from liability, but from other companies leaching off of their great ideas and unique designs.

Now, it should be noted that Etsy’s corporate counsel, Hissan Bajwa, wrote a post a year or so ago about the various types of business entities an Esty shop owner could own, but I feel like he may have left out a few things and wanted to go into a little more detail. Keep in mind that everything in this post is merely general advice, and none of it should be considered legal advice since (for most people reading) I’m not your attorney and I’m not basing any of this article on specific, individualized, facts but merely general observations.

The Best Legal Structure for an Etsy Shop Owner

What the best legal structure is for your business is going to be a question for your own personal business attorney. That’s right, you’ll need to evaluate what you’re selling, whether you’re working with anyone else, and what the taxes will be like depending on the type of structure you’re interested in (and that’s also a good question for a CPA, as most good business attorneys will tell you).

Let’s Talk Sole Proprietors

With that said, I’ve been shopping on Etsy for a long time, and I know that for most of the seller out there, who are working part time crafting their wares, a sole proprietorship is fine. You’re doing business as yourself (or under an assumed name, for which you’ll need a “Doing Business As” DBA recorded pursuant to your county’s rules), and as a result, if you run a shop on Etsy, you’re already a sole proprietor. From a tax perspective, you and your business are one in the same, and from a liability perspective, you’re also one in the same—which an lead to you being held personally liable for any lawsuits that may pop up against your business. Do keep in mind that you may be able to protect yourself with liability insurance, but be sure you really know what your policy says.

In short, a sole proprietorship structure is easy to run (all the money just goes to you), easy to maintain (you don’t need any specific filings or documentation except for a DBA), easy to form (automatic as soon as you start doing business), but you need to watch out for the liability problems or you could get seriously burned (you’re personally liable for everything done in the name of your business).

So, in an incredibly general way, I’m going to say that for most Esty sellers, a sole proprietorship is all you need—especially if you’re just starting out and don’t want to invest a bunch of money into a business you’re not sure is going to work—unless you’re selling items that could injure someone, including vintage items, food products, beauty and grooming products, certain types of furniture, or anything that could injure someone.

Partnerships Are Just…Meh

Now, the question when you decide to start working your business with another is whether to form a partnership or one of the more “sophisticated” business structures like a corporation or a limited liability company (LLC). This might just be personal preference talking, but I’m not a fan of the partnership structure unless it’s absolutely necessary (which does happen in very specific circumstances which are way, way outside the scope of this article). Essentially, you and another person enter into a business partnership, at which point I always recommend a partnership agreement—seriously, if you’re partnered with someone and you don’t have a partnership agreement, call an attorney and get one drafted now, this very instant, I’m not kidding—when you start operating the business together.

A partnership is kind of like a sole proprietorship, but for two people. Same as before, they’re easy to run (just split that money as stated in your partnership agreement, or equally if you don’t have a partnership agreement), easy to maintain (again, just file for a DBA and that’s all you’ll need provided you and your partner are still getting along), easy to form (just start doing business with someone else), and as with the sole proprietorship, easy to get totally screwed if someone sues the partnership. And why you may ask? Because in a partnership, both partners are on the hook for the entire amount of any liability the partnership incurs. So if your partnership is sued, and your partner can’t or won’t help pay, you’re going to be stuck holding the bag (though in all fairness, you can try and get the money from her later).

My feeling about partnerships for Etsy store owners is this: if you’re doing enough business that you’re in need of a business partner, skip the partnership, spend the money and form a corporation or an LLC.

Better Liability Protection Comes at the Price of a Corporation or LLC

We come to the last two types of businesses for Etsy shop owners: the corporation and the LLC. Now, there’s only one type of LLC (unless you count LLPs, which are like LLCs and partnerships mashed up and only used in limited circumstances), but there’s a whole slew of corporation types, from C-Corp to S-Corp to B-Corp. We’re going to talk about a few pros and cons of all of them, but a somewhat more detailed study, you may want to check out my other articles on corporations and LLCs.

For a lot of small business owners, the biggest issue I run into with corporations and LLCs is that entrepreneurs don’t like to pay for them. Most of the time, as long as you do yourself a favor and stay away from the non-lawyer legal service providers you see advertised on TV, you’re going to have to shell out around $500 to $1000 to get a corporation or an LLC formed after attorney fees and filing fees with the state you choose to incorporate in. For some business owners, especially Etsy sellers who are just getting started, that’s quite a chunk of change, and you’re probably wondering what you get for that.

What you get for that is a lot more liability protection in case something goes wrong and your business gets sued. This means that if the business is sued, you’re most likely going to be protected. It also means that you have to keep up with a lot more busywork to keep your business going. Extra documents will need to be drafted, meetings will need to be held, a separate set of taxes will need to be done, and so on. But all of that comes with the big perk that if your business is sued, you and your family aren’t going to have to pay for the damages out of pocket if you lose—your business is solely responsible. And because of that big benefit of a corporation or LLC, if you’re selling products that run a higher risk of hurting someone, do yourself a favor and talk to a business attorney (most of us are free to consult with) about whether you should go the corporation route.

On top of the liability protection, some of the corporation types also give you extra benefits. For smaller businesses, I say stay away from the C-Corp structure unless you’re interested in securing some kind of venture capital investment. However, an S-Corp can help you save money on taxes, and a B-Corp can help you save money on certain supplies and other necessaries to keep your business running since having a (Certified) B-Corp shows the world that your businesses takes social responsibility seriously.

Protect Your Handmade Items from the Prying Eyes of the Big Companies

While the first part of this post dealt with how to protect yourself in the face of liability, the second part of this article will deal with how to protect your products from “theft” by the competition. At the outset, it’s important to know that not everything can be protected and a full on, proper protection scheme will cost you a lot more than you’re probably making selling your products on Etsy, but I’ll give you a few hints and tips on how to protect your products without breaking the bank.

Also, every industry has a preferred type of protection, wether it’s copyright, patent, trademark, or trade secret, so I’ll be touching on all types of protection.

Don’t Copy Me…I Have a Copyright

Copyright protection is automatic for things that qualify for it. That’s right, you don’t need to file any paperwork, pay any fees, or anything like that if your items qualify for copyright protection. However, obtaining a copyright for many types of products is simply impossible, and if you want to go after someone for money damages who has copied your work, you’re going to have needed to register your copyrighted item with the Copyright Office arm of the Library of Congress.

So here’s how copyrights come to be. They need to meet two main requirements: originality and fixation in a tangible medium. First, something needs to be original to be copyrighted. It doesn’t have to be super original, just mostly original. Second, it needs to be fixed in a tangible medium. Say what? That just means it has to be more than just an idea, it has to be “touchable” for lack of a better word. There’s also a third requirement: the item can’t be functional.

With the requirements out of the way, let’s talk about a few items currently on Etsy’s front page that may be able to qualify for copyright protection. Jewelry, clothing and accessories, photographs, paintings, furniture, and eyewear. That’s a pretty wide range of products, all of which may be available for copyright protection provided any individual item from a group of items like that is able to meet the requirements for a copyright.

If You’re Trading Goods, You Need a Trademark

Trademark protection is another great way to keep the big companies at bay and protect your products. First things first, I’m a trademark attorney, so I always recommend that if you’re serious about your business, you really need to spend the few hundred dollars to trademark your company’s name. You don’t have to spend extra to trademark a logo or a slogan, but do yourself a favor and trademark the name of your company to give you that extra leverage to fend off competitors who may try to leach off your success. And even if you’re not worried about that, at least have a qualified attorney perform a trademark search to make sure you’re not infringing on the trademark of another. Seriously, I’ve seen it happen before, and a few hundred dollars now can save you tens of thousands later.

With that out of the way, trademarks are designed to protect brands and make sure consumers know where any given item is coming from. Most notably, business owners register trademarks for the name, logo and any slogans used by the business, along with the names they use to brand their products. However, beyond that, certain characteristics of the products themselves may be eligible for trademark protection under what’s known as trade dress. Trade dress extends trademark protection to the decorative, non-functional, non-essential portions of a product, which makes it an excellent way to protect certain types of products. Here’s a few examples of where trademark protection may be applicable: watches, clocks, clothing, jewelry, eyewear, and accessories.

Patents are Patently Expensive

Patents are the third category of intellectual property protection, and to be perfectly honest, they’re way beyond what you’ll likely need as an Etsy shop owner. They’re usually incredibly expensive and take a long time to obtain, and I really don’t recommend patents for most small businesses.

Keep Your Recipes a Secret, a Trade Secret

The final type of protection for your products is trade secret protection. Purveyors of food products, beauty products, and other consumables, its time to listen up. Trade secrets protect the recipes and formulas you use to create your products, but they can also be used to protect things like customer lists, supplier lists, and pretty much anything that makes you different from your competition. The catch? You need to keep your trade secrets a secret. Don’t tell anyone you don’t need to. Make those you do tell sign a non-disclosure agreement. And if you write any of your trade secrets down, keep them under lock and key and only let others see them on a need to know basis.

A Quick Conclusion to a Long Article

At over 2400 words, I think this is the longest article I’ve written on my site, but there was a lot of information to cover and I hope you’ve learned a thing or two about how to protect yourself and your Etsy business. A few things to keep in mind in parting.

Sole proprietorship is probably fine for many Etsy shop owners, but not all, so call an attorney if only for a quick (free chat) about business structures if you’re worried about liability or interested in taking advantage of the perks of a corporation or LLC.

Copyright and trademark protection may be available for your products, but don’t just assume. As far as trademark protection goes, take a look at the (growing) database of common trademark questions for some quick answers on whether your product may be trademarkable. And if you have a product or service to add, let me know and I’ll give you credit for it.

Whether you’re a sole proprietor using a DBA or a full-fledged corporation, trademark your business name, or at least spend the money on a professional trademark search to make sure you’re not infringing on the trademarks of another.

And that wraps it up. Good luck in your endeavor on Etsy and I hope your business continues to grow into a huge success. And if you’re already a shop owner on Etsy, feel free to share your shop in the comments below.

Why You Need to Record Your Trademark With US Customs and Border Protection (CBP)

At the risk of sounding sensationalist, if you run a business with products that are easily counterfeited, you need to record your registered trademark with the US  Customs and Border Protection (CBP), lest you suddenly find your business is being drowned out by fakes, copies, and products that, while looking similar to yours, do not carry the same quality and pedigree that your company’s goods do. Oh, and you also do not make any money off of them because the counterfeiters are instead.

You’re probably asking yourself why you’ve never heard of the CBP trademark registry. Simply enough, it’s because the CBP registry is not very well known. If you’re a service provider, you probably don’t need to know about it—and you can stop reading this article at around 100 words in—but if you’re in the business of making a product, especially consumer focused products, the CBP database can actually be of incredible import. But first, a few facts about the CBP trademark registry. It was set up as a way for the CBP to record the trademarks and copyrights of intellectual property owners who were concerned about counterfeit goods flowing through America’s borders. When your trademark or copyright is recorded with the CBP, they start looking out for those goods as they come in through Canada and Mexico, as well as across the Pacific and Atlantic. Once they find counterfeit items, they can exercise a number of actions, including seizure, destruction, and monetary sanctions—but more on those later.

So, you’re selling goods, say, high end watches in the $5,000 to $15,000 range. You’ve spent a lot of time and effort developing the movements, the unique design, the branding, and the overall image for the type of lifestyle you’re selling. You’ve partnered with an excellent trademark attorney from the very beginning to help you develop your brand cohesively, and you’ve registered your trademarks for the company name, any of the unique names of the individual watches, any logos, and maybe even the trade dress for your uniquely designed watches themselves. At this point, you’ve already completed the first step in recording your trademark with the CBP—registering your trademark. You see, the CBP has to go through a lot of different products when they cross the border, and while it would be great for them to be able to check all of them for trademark violations, they have to cap it somewhere or the manpower necessary would be prohibitive. As a result, in order to record your trademark or copyright with the CBP, you need to make sure it is validly registered with the United States Patent and Trademark Office (USPTO). That’s your first step: trademark registration. Or, if you’re interested in protecting your copyrights with help from the CBP, you need to make sure that you register your copyrights with the US Copyright Office.

Benefits of Recording with the CBP

Now that you know the first step for recording your trademark with the CBP, let’s discuss some of the perks of doing so. There are four major benefits:

  1. The CBP will be able to monitor and seize any merchandise with any counterfeit marks that are similar or identical to the trademarks you have recorded with them.
  2. The CBP will be able to issue monetary fines/sanctions against anyone or any business who tries to bring counterfeit goods with your trademarks into the United States.
  3. The CBP will be able to contact the US Attorney’s Office in order to initiate criminal prosecution of counterfeiters.
  4. The CBP will be able to raid counterfeit production facilities both nationally and internationally depending on the scale of the counterfeiting operation.

If you’re faced with an influx of counterfeit goods steering sales away from your own products or you are afraid that as your brand grows, you’ll have problems curtailing counterfeiters later on, these are some very powerful weapons the CBP provides trademark and copyright holders. Effectively, by recording your trademark with the CBP, you can not only shut down the local importers and merchants who sell your goods in shady back alleys and low end swap meets, but you can even stop the flow of goods entering the United States or prevent them from being manufactured at all.

What is the Enforcement Process Like?

The enforcement process for trademarks and copyrights registered with the CBP is very simple. Once you have recorded your trademark or copyright with the CBP, they will contact the intellectual property owner (or the law firm you’ve listed as your attorney of record) to provide them with all of the necessary information regarding a seizure. Essentially, they will give you a description of the merchandise, the quantity of the items they’ve seized, who has been manufacturing these items, and who has been importing them into the United States. The CBP may, in some situations, even provide you with with a sample of the infringing counterfeit merchandise so that you can go after the manufacturers and importers with a civil case for trademark or copyright infringement, if you so choose. As you can see, the process is generally very simple with the CBP only contacting you (or your attorney) when they’ve detected a suspected counterfeiter.

How Much Does Recordation Cost?

Recordation with the CBP is very inexpensive—but more than the very low fees charged by the US Copyright Office for registering a copyright. As of this writing, the fee is only $190 per copyright and $190 per mark per international class for a trademark (if you don’t know what that means, please contact me). The form is fairly straightforward and everything can be done online. To be perfectly honest, you don’t even need an attorney to do it. But if you’d like to hire me, I’m always happy to help at a very reasonable flat fee with discounts for clients who have hired my office to register their trademarks.

There is one thing to keep an eye out for, if you’re going to register with the CBP. Around the time you successfully register a trademark, many people are contacted by third party organizations claiming to be working for or related to the CBP or some other governmental organization. They always send letters. These letters look very official, often bearing some kind of official seal or something along those lines—they are not from any official organization. Instead, they are designed to trick new trademark owners into believing they are not taking advantage of all of their registration rights. As such, they charge often exorbitant fees for services that shouldn’t cost more than a few hundred dollars. I’ve seen examples of letters that charge as much as $1,500 to register a trademark on the CBP. Do not fall for these scams, and if you’re going to hire someone to assist you with recording your trademark or copyright with the CBP, use someone you trust.

Ultimately, recording with the CBP is a very valuable tool for trademark and copyright owners who are looking to protect their products from counterfeiters. It is a service offered by the government at a reasonable fee that provides many great perks to intellectual proper rights holders. If you need more information or you’re interested in pursuing a registered trademark, a registered copyright, or a recorded trademark or copyright, please don’t hesitate to contact me. And, if you’ve dealt with counterfeiters before (either with the help of the CBP or on your own in civil court), please leave your story in the comments below.

Understanding the Nuts and Bolts of the DMCA Takedown Notice — The Counter-Notice

In Part 1 of this series on DMCA takedown notices, we discussed what a DMCA takedown notice is and what you need to include for it to be valid. In this article, we’ll go over the process for what you can do if you wrongly receive a notice.

The most common response to a DMCA takedown notice is to send what is known as a counter-notice. Much like the takedown notice, you must follow a specific set of instructions for your counter-notice to be effective. The requirements are as follows.
1. The counter-notice must be in writing.
2. You must identify the copyrighted material you were accused of infringing that was blocked by your ISP.
3. You must specify where the material was previously found.
4. A statement, under penalty of perjury, explaining you have a good faith belief the material was removed as a result of mistake or misidentification.
5. A statement that, if the dispute comes to a copyright suit, you consent to the jurisdiction of the Federal District Court for your district.
6. Your contact information.
7. It must be signed by you.
When the counter-notice is complete, you must send it to the issuing service provider who will then forward it to the copyright holder or her agent.

Now, the counter-notice is a great device, but whether it is effective in the end really comes down to whether you, as the alleged infringer, had the right to be using the copyrighted work in the first place. And that’s a discussion that comes down to whether your use of the material constituted fair use or not. Now, fair use is an incredibly sticky area that could easily be discussed in a week’s (or even a month’s) worth of posts, so I’ll try to sum it up as concisely as I can here. Fair use is essentially the use of a copyrighted work in a certain way, such as for parody or instructional purposes, where the alleged infringer is not liable for infringement because of the certain circumstances of how the work is being used in that particular case. This is an incredibly fact-intensive analysis requiring the consideration of several factors, and you should discuss any type of fair use with a copyright attorney before you jump to the conclusion you are fairly using a copyrighted work.

Now the counter-notice is a great first step to dealing with a DMCA takedown notice that shouldn’t apply to you, but what if you get a takedown notice that is completely fraudulent on its face. Well, you have an option. The DMCA allows for claims against the copyright holder or her agent who issued the takedown notice if the issuer knowingly materially misrepresented the facts specified in the takedown notice. While it is true that’s a very high bar to overcome, if you are faced with a copyright holder who has absolutely no justification to send you a takedown notice, it may be in your best interest to contact a copyright lawyer to see if you have a case. After all, the DMCA provides for damages and attorney fees if you win.

Photo courtesy: gagilas

 

Understanding the Nuts and Bolts of the DMCA Takedown Notice — The Takedown Notice

The DMCA Takedown Notice is one of those seemingly mythical devices copyright holders use to help stymie the spread of their works over the internet. A lot of people don’t understand exactly what they are or how they’re used—but that’s what we’re here for.

Where Do These Things Come From?

DMCA takedown notices emerged from the Digital Millennium Copyright Act (hence the DMCA part of their name). Essentially, they were designed to provide a kind of safe harbor for internet service providers (ISPs) when people were using their networks to share copyrighted information. A copyright holder can send an ISP a DMCA takedown notice informing them of the infringing activity being conducted through their network, the ISP disavows any knowledge of infringement but forwards the notice on to the actual infringer. If everyone is lucky, the infringer stops sharing the files, the ISP doesn’t get sued, the infringer doesn’t get sued, and the copyright holder can go about her business. It doesn’t always work as smoothly as that, however, and DMCA takedown notices given to non-American infringers almost always get tossed right into the trash.

What Gets Included In A DMCA Takedown Notice?

There’s been a lot of misconception lately about what you need to include in a written DMCA takedown notice and, particularly, how much these notices cost. You need the following items:
1. Signature of the copyright holder or her agent.
2. An identification of the copyrighted work or works that are being infringed.
3. An identification of the material that is infringing the work or the infringing activity you wish to stop.
4. Information that is sufficient enough to allow the ISP to locate the infringing material or activity.
5. The copyright holder’s (or her agent’s) contact information.
6. A statement explaining the copyright holder did not authorize the infringing material or activity.
7. A statement, under penalty of perjury, explaining the information in the DMCA takedown notice is accurate and the copyright holder (or her agent) is authorized to act to stop the infringement.
And that’s really all there is to it. Once the takedown notice is finished, all that’s left is to send it off to the service provider.

Can I Send A DMCA Takedown Notice Myself?

Of course. That’s part of the beauty of the DMCA, is allowing copyright holders and their agents the right to act without having to hire an attorney. Of course, improperly formatted DMCA takedown notices are almost always discarded immediately, so you want to make sure you draft one properly. And to that effect, you may want to consider hiring a copyright attorney. However, if you read the statute, 17 USC § 512, and feel you have a good grasp of what you need for a proper notice, then by all means, draft away.

Photo courtesy: gagilas

 

How to Protect Yourself—And Your Business—From Copyright Infringement Claims

How do I protect myself (and by business) from a copyright claim? This is a question you should be asking yourself if you have any internet presence. Whether it is something as significant as a full-featured web application, a simple blog, or even just a Twitter, Facebook, or LinkedIn account, you need to make sure you’re not accidentally (or intentionally) stealing someone else’s copyrighted work. Here’s a quick primer to keep you out of trouble.

Don’t copy another person’s work. Simple as that, right?

Well there’s actually a lot more to it. Copyright law in the United States is governed by Title 17 of the United States Code. The law protects all types of creative works, ranging from the written word, to drawings and photographs, to videos, and of course the often publicized sound recordings. On a very basic level, a copyright gives the author the right to modify, distribute, and perform their work however they choose. Of course, the author can also license her work to others, and can sell her work to whoever she wants. And she can send out cease and desist letters to, or sue, people who infringe on her copyright.

And that brings us to the three main areas you’re most likely to get in trouble with copyright law on the internet:

Written Content, Blog Posts, Articles

Here’s an easy pit to fall into. You find a blog post you really like that would fit absolutely perfectly with your blog’s theme. So you say, whatever, the post is really old, the original author probably isn’t getting too much traffic to it anymore, I’ll just copy it on my blog. No harm done, right?

Congratulations, you’ve just plagiarized the original author’s content and violated their copyright. Feel free to take the general idea of their post, but make sure you put it into your own words—that’s the easiest way to protect yourself from a copyright claim for stealing another’s written work.

Art, Photography, Videos, and Music

We have a very similar situation to the above. You see a picture you really like on Flickr, DeviantArt or some other image site. You like it so much, you feel it needs a new home on your own website. So you download it from the image hosting site, never bothering to read the license agreement, and upload it to your own site. The photographer sues you for infringing on his copyright, and you wonder why.

If you find a photo you want to use on your site, just contact the photographer and ask them if you can use it on your own site. The same simple technique goes for art, videos, and music (though be careful with videos and music, as there may be a number of parties who actuallyown the copyright). As long as the art isn’t for sale somewhere like a stock photo site, most artists will gladly let you post their picture so long as you give them a link back to their site. And if they don’t, find another artist who will let you use their picture instead.

HTML, CSS, JavaScript, and Other Code

There’s been some debate over the years about whether web design code is copyrighted. The general consensus is yes, the scripts, codes, and other programming that goes into designing and developing a website are protected by copyright law—although the general look of the website (two column layout like our site, for example) is not.

So how do you get around a claim of copyright infringement even though you see a website you really like and you want to incorporate some of those design elements into your own site? Use their site as inspiration, but don’t copy directly from the CSS or HTML files when incorporating similar elements into your own site. Sure, you can view those files to figure out the general way the developer accomplished her task, but stay on the safe side and don’t copy her code.

Above all else, if you are unsure about whether something is copyrighted, play it safe and assume it is. And if you do find yourself embroiled in a copyright infringement suit, you would like to register a copyright for your own work, or you are concerned about whether something is copyrighted or not, contact a copyright attorney.

Photo courtesy: Instant Vantage

5 Alternatives to the “Let Them Steal” Approach to Copyright Protection

I’m a bit of an amateur photographer on the side. My fiancé and I have long enjoyed heading out on weekends to picturesque locations around the Greater Los Angeles area to find an amazing photo opportunity or two. And, while I’m certainly not good enough to consider myself professional, I enjoy keeping up with the latest happenings in the sphere of professional photographers. Most of the topics are far outside the scope of this blog, but one post in particular caught my eye recently, and I felt it warranted a post from a lawyer’s perspective on copyright infringement.

Aptly titled “Let Them Steal,” professional photographer David duChemin takes a unique approach to a much-discussed topic: whether a photographer’s time is best spent hunting down and punishing those who steal her work. His answer was “no.” And that’s completely understandable given that, as a photographer, you’re in the business of taking pictures—not scouring the internet for someone who posted your latest landscape on Pinterest. But even if you don’t want to spend every waking hour you’re not honing your craft on searching for scrapers and plagiarists, there are a few ways to protect your work with a minimal time and monetary investment.

Watermarks
A watermark is the quickest and easiest way to try and discourage theft of your copyrighted work. Create some fancy typography, slap it on your image, and call it good. Big or small, it will discourage some people from stealing your work and it should help point people who view your photo (stolen or otherwise) toward your business. Or, you can spend a little extra time on your watermark and include pertinent information other than your name and the copyright symbol. Think about throwing in your website, the date the photo was published, and even the phone number of your studio. The more information you provide in the watermark, the more likely it will be that you may actually get a client if someone sees your work—regardless of whether it was stolen.

Demand Letters
While watermarks are a good passive way to try and deter some copyright infringement, demand letters, DMCA takedown notices, and civil suits require a bit of work in finding the infringer in the first place. But however you locate the infringer, whether through a Google image search, random browsing on Facebook, or by hiring an investigator, a demand letter may go a long way to convince a thief to remove the image. You can draft one yourself, citing to the applicable copyright laws and cases, or you can take all of the stress away and spend a couple hundred bucks on a copyright attorney to draft one for you. Just remember, if you draft a demand letter yourself, keep calm, be precise, and don’t make any ridiculous legal threats.

DMCA Takedown Notices
The DMCA (Digital Millenium Copyright Act) Takedown Notice has gained a lot of attention in the past few years. Maybe it’s because Google has directed some attention to it by replacing removed search engine results with a link to ChillingEffects, drawing the public eye to how broad and specious some of these notices are. But I digress. If you find that a site contains your copyrighted work and you want to use a less personal way to get the webmaster to take that material down, a DMCA takedown notice is a good way to go. But keep in mind that a lot of website owners may ignore your request, so be prepared to take additional steps if necessary.

Civil Suits
I’m a firm believer that a suit should only be filed as an absolute last resort. And when it comes to copyright infringement, I feel much the same way—only resort to a suit if every other avenue has been unsuccessful. Bringing legal action against each and every person who re-pins your photo on Pinterest will only lead to major public outcry against you, and is that what you really want? Save a civil suit for those individuals who are especially nefarious. People who are stealing all of your work, passing it off as their own, selling it, and refuse to respond to any of your demand letters or DMCA notices. And remember, if you want to claim for the maximum amount of damages in a copyright infringement suit, you’re going to have to make sure you’ve properly registered your copyrighted work.

Making The Item Freely Available
As a final alternative to letting people steal your work, consider just making the work available for free in the first place. Consider it part of your marketing materials—a photograph with your information attached to it that you freely distribute everywhere on the internet.

Image courtesy: Thomas Leuthard