It’s an experience no artist wants to have, but it’s far too common. You’re out in the world or looking at your feed, and boom, you see something that looks an awful lot like your work. No one asked for your permission. No one gave you a warning. No one paid you. It can be hard enough to get credit and compensation as an artist without an imitator ripping you off. You’ve just discovered someone has stolen or copied your work. Now, what do you do?
First: Collect information
Gather photos, screenshots, and links of both your work and the imitation, and archive them in a safe place. Have someone (not you) buy a copy of the imitation, so that you have proof of the work being stolen. You don’t want to personally buy the item in question to avoid altering them while you strategize, and also for privacy concerns — you don’t want someone you might sue having your personal and financial information.
Try to determine exactly who is responsible. Can you find a company name or contact information? Where has this been made public? Consider the platform and use. If someone has used your image on a made-to-order T-shirt, for instance, the company that produces the T-shirt likely has its own infringement policy. This may be extra ammunition to get the infringer to stop what they’re doing.
Second: Is it time to get a lawyer?
Once you’ve collected all of the available proof that someone is infringing upon your work, consider your ideal outcome. Do you just want them to take down an image online? Or have products with your image or design been sold, potentially confusing your customers? Are you entitled to compensation?
Consider these three key points:
Who is ripping you off? Are they an independent designer, a big brand, or a large international corporation?
What is the level? Is it a small sign inside of one store in one city, or a nationwide campaign across the country? Are bootlegs being sold? Did they steal one element, or is the copy shot-for-shot?
Who are you? How important is this design to your core brand, your career, or your practice?
The context of the problem and what you hope to get out of it should inform how you contact the copycat. If you reach out directly, state in writing that you are the owner of the work and that you would like them to immediately stop using your materials.
If the infringement is significant enough to be a serious threat to your brand or your bank account, it may be time to escalate. One indicator of when it is time to stop fighting this on your own is if the production of the product or use of your images increases or expands after you’ve already sent the cease and desist.
Third: I’m ready for a lawyer, what now?
A letter from a lawyer can carry more weight than an email or DM from an independent artist. It also shows that you are serious about the claim.
The most common type of letter is the “Cease and Desist.” Basically, this letter states: “We notice what you are doing. Stop, or we will seek further action.” This communicates to the copycat that they are in the wrong and they’ve been caught. Generally, you don’t want to send a letter threatening further action unless you’re prepared to back it up.
If your work is protected under federal copyright, then there are much stronger protections in your toolkit, including the possible waiver of legal fees. This means if someone is infringing upon you, then you may take them to court, and if you win, they will be required to pay your legal fees.
If you have not filed a federal copyright application, there are still options available to you. First, you could contact the infringer to attempt a settlement. If that doesn’t work, you may consider going public to leverage the court of popular opinion to pressure the infringer to stop. This could mean anything from reaching out to press or posting on social media. You should consider your reach, who might amplify your story, and the possible consequences of going public.
Fourth: What can I do to prevent this in the future or protect myself before this happens to me? The best way to protect yourself is to copyright your work. To own a copyright of a work is to own the exclusive right to copy and authorize others to use the work. If someone is reproducing, selling, or publicly displaying your work without your permission and you have a registered copyright, you are entitled to take them to court and stop them.
You can copyright any original work, including: literary (including computer programs), dramatic, musical, architectural, choreographic, pictorial (aka photography) graphic (illustrations, websites), sculptural, and audiovisual presentations (including movies and videos).
Copyright covers both published and unpublished works. In some cases, like photographs, you can file several works as a batch to cut costs.
If you have a registered copyright for your work, there are two key benefits.
Attorney’s fees: As mentioned before, if you go to court and prove that someone is infringing upon your work, the infringing party is required to pay your legal fees as a part of your compensation.
Statutory Damages: The law states that the penalty for infringement may be up to $150,000, regardless of how much the infringement cost you.
Register your work with your country’s Copyright Office to protect it. Once your work is completed, it automatically secures copyright and will create a public record of your ownership — especially if it is registered prior to publication.
The US Copyright Office and other government agencies have launched the STOP Fakes campaign to provide resources and information to individuals and small businesses to protect themselves. Depending on your work and what you want to protect, it might also be worth registering for a patent or trademark. The United States Patent and Trademark Office has an outline of the differences between trademarks, patents, and copyrights that is helpful to determine if you may want additional registrations.
Fifth: What if I discover that my work has been copied and reproduced outside of my country? Is there anything I can do?
Copyright law is based on the territory, and there is no such thing as an "international copyright" that will protect you throughout the world with a single registration. Regardless of where the author lives or where the work was first published, copyright protection depends on the national laws of the country where you seek protection. The United States is one of about 180 countries that are members of an international copyright treaty known as the Berne Convention. Under this treaty, an author from any member country is entitled to the same protection as a citizen of the country where the copyright infringement occurred. So, for example, if an American’s copyrighted work is being copied in France, the American party would get the same rights under French law as if they were a French citizen. Of course, that does mean that you would have to sue in a foreign court, which in many cases will be too expensive. The same could apply if you are a non-US citizen and your work is infringed by someone in the US.
If you discover an infringement overseas, an experienced copyright attorney can help you determine if there is any legal basis for your claim. The copyright law also protects you from infringing imports. You can record your registered copyright with the US Customs and Border Patrol, who can seize goods that infringe copyrights.
For more information on copyright protection worldwide, see here and here. In short, it’s important to know that you do have options. There are a number of steps you can take to combat someone stealing your work and prevent it from happening again. Infringement happens far too often and is overlooked across too many industries. If your work is profitable and well-known, protecting it is a great way to make sure your work stays your work.