Copyright Infringement Enforcement: What Happens When Your Creation is Used Without Consent

You own a copyright the moment you fix your work in a tangible form.

Catherine Cavella, ESQ.

You own a copyright the moment you fix your work in a tangible form. That’s a powerful feeling. The law, however, gives the real power to people who register. In the U.S., you cannot file a copyright lawsuit without a registration on file with the Copyright Office. That registration is the ticket to enforcement.

Unique works like a photo you took, a song you wrote and/or recorded, or artwork you created, carry your effort, your voice, and your reputation. Even works you paid someone else to create for your business, such as a logo you paid a designer to create or photos you paid a photographer to shoot, reflect your investment, your standards and input, and ultimately your business’s reputation. When that work appears on someone else’s website or inside their marketing materials without permission, the reaction is immediate. You want it to stop, and you want that demand to carry real weight. Copyright enforcement brings legal structure to that endeavor.

Note: When you pay someone else to create work for you, do not assume you own it because you probably do not. The copyright belongs to the creator, not the person who hires the creator or the person who pays. You must have a document signed by the creator clearly stating that you own the copyright – otherwise you don’t. The only exception is if the creator is your W2 employee and creating the work is within the scope of their employment. Ignore what you think you know about work for hire – it is a tricky and nuanced concept. Just get a signed writing that clearly gives you the copyright in exchange for what you are paying. This discipline will save you much heartache and expense in the future.

When You Want To Enforce Your Copyright

To sue for infringement, you need a copyright registration with the U.S. Copyright Office. In practice, you should register the copyright before a serious cease-and-desist letter goes out. Without registration, a business or bad actor on the other side may treat your demand as a bluff and wait until you can produce a Certificate of Registration proving the Copyright Office has your registered work on record.

Treat copyright registration as part of your release process. A practical benchmark is to apply for registration 30 days from the date you first publish the work (post the blog, display the photo, use the logo publicly, release the recording). Many creators and businesses pick a regular cycle, monthly or quarterly, and register new works or collections in batches. That routine turns enforcement from an emergency project into a built-in safeguard, and it cuts down on scrambling when someone copies your work.

Why 30 days? The longer you wait, the more likely you are to forget. If you register more than 90 days from publication, you will lose the most valuable benefits of copyright registration – a gift for anyone who copies your work in the meantime. So make it systematic, make it a habit, and don’t put it off. 

When Someone Accuses You of Infringement

The other side of enforcement shows up in one of two ways, typically. The first shows up in your inbox –  A stranger claims you used an image or article without permission and demands payment to avoid a lawsuit. This type of sender is what we call a “copyright troll.” Some are simply scammers. Others may actually work for real rights holders who run aggressive enforcement programs. Sometimes it’s hard to tell them apart. 

Usually there is real copyright infringement underlying these claims.  Most demand a few thousand dollars that it is cheaper to pay them than hire a lawyer. 

Approach these messages with care. Save the email, note where the allegedly infringing material appears, and investigate the facts. Does the post actually appear on one of your pages? If it does, and if you don’t know for sure that you created the content, then take it down while you continue your investigation. Who chose the allegedly infringing content, and where did they say they got it? Did they have documentation giving you the right to display it? Gather any licenses, stock site receipts, Terms of Service and independent contractor agreements related to that content so you can back up factual assertions. 

Avoid quick payments, angry replies, or putting your head in the sand. Ignoring these trolls will not make them go away – instead, they just increase the monetary demand. They are delighted to escalate – it’s part of their business model. If you ignore long enough, they might actually sue – assuming they have a Certificate of Registration and something showing they have the right to sue on behalf of the rights holder. An intellectual property attorney can review the claim, evaluate your exposure, and help you decide whether to respond, negotiate, or push back.

The second type of enforcement action shows up in your e-commerce or social media platform portal – The platform takes down your post, page, or product listing because of a claimed infringement. The Digital Millennium Copyright Act (DMCA) is a federal law that requires platforms and hosts to take down infringing material and follow certain guidelines to avoid being named as a contributing infringer in a copyright infringement lawsuit. In practice, the DMCA can be a bit of a “whack a mole” situation where posts come down and go back up according to the platform’s DMCA policies. When you are on the receiving end of a takedown, follow the platform’s DMCA rules to get your post re-posted.

Don’t be surprised, however, if the platforms are inconsistent in their handling of takedowns. We are seeing an uptick in takedown activity, with the platforms being increasingly unresponsive until we get involved.  Involving an intellectual property lawyer  who is ready to sue can help bring a more satisfying resolution to a takedown war.

Guard Your Creative Work and Your Business

If you want copyright law to protect your original creative work, move from reacting to planning. Register on a schedule, use licensed content, and get legal guidance before you send demand letters or respond to them.

For help building that kind of protection into your business, contact IP Works Law at 215-348-1442.

Copyright Infringement Enforcement FAQ

Do I really need to register my copyright to enforce it?

Yes. You can own a copyright without registration, but registration unlocks the ability to file a lawsuit, which increases your leverage in negotiations. Registering early greatly increases your settlement leverage, which saves you thousands in legal expenses.

How soon should I register my work?

Right away. Aim to register within 30 days of first publishing a work. Many creators pick a recurring date, monthly or quarterly, and file registrations in batches.

What should I do if I get a “copyright troll” email?

Don’t ignore it, but don’t rush to pay. Take down the offending content and investigate the facts. Save the email, gather information about the content at issue, and consider reaching out to an intellectual property attorney to review the claim before you respond.

What should I do if I get a takedown? 

Follow the platform’s procedure for contesting the takedown and contact an intellectual property attorney to review the claim and advise you how best to proceed to get the content back up, including reaching a permanent resolution with the claimant.