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Legal Advice for Freelance Writers (and Other Content Producers) from an Intellectual Property Attorney on How to Protect Your Work from Copyright Infringement and Other Types of On & Offline Theft

A few weeks ago, I disclosed how I discovered that I was a victim of copyright theft (this happens so often it’s crazy!). Another alleged freelance writer had not only stolen portions of one of my ebooks and was passing it off as her own, she also stole my professional credentials.

Warning — this is a monster post on copyright infringement, digital theft, plagiarism, libel and how to protect your works (and reputation) online and off. It’s over 2,200 words long . . . but worth every single one of them if you’re a content producer (ebooks, video, graphic designer, etc.).

Freelance Writer’s Copyright Rights: An Intellectual Property Attorney Speaks

I was so angry when I discovered that my content had been stolen that I spent an entire day researching the subject – and a copyright attorney to put on retainer — because the next time I discover it, I’m giving no warnings, I’m suing. One of the lawyers I contacted was kind enough to answer some questions. Her name is Tonya M. Evans; she’s an Intellectual Property lawyer, as well as a professor.

Her bio reads as follows in part:

Tonya M. Evans is Assistant Professor of Law at Widener University School of Law (Harrisburg campus) and an attorney specializing primarily in the areas of entertainment law (literary, music and film) and intellectual property (copyright and trademark).

She is a nationally recognized speaker who presents to various audiences regularly on publishing and intellectual property law issues.

I point this out to underscore how important it is to get info first-hand from a qualified professional who knows what they’re talking about. Read Ms. Evans’ full bio at http://legalwritepublications.com/about.

A shout out to @InVinceWil for pointing me to Professor Evans; I had an awesome response to my query for recommendations of copyright attorneys  from quite a few in Twitterville.

Freelance Writers: Why It’s Time to Get Serious about Protecting Your Work (Online and Off)

copyright-infringement-ebookAttorney Evans was kind enough to give some detailed answers to some very specific questions. It’s a lot of reading (which is why I never made it to law school probably; took the LSATs and applied, but never went). But, I digress.

In this digital age, it’s extremely important for freelance writers to get serious about protecting their work. And this is particularly true if you’re a self-published author – as many freelance writers are dipping over into.

Copyright theft is rampant online – and it’s only going to get worse. So, following is what Professor Evans had to say regarding a myriad of questions I fired off to her. She sent quite a few links, so I’ve boiled down her “essential answers” (in my opinion), and linked out to the full posts so you can read all the detail she provided.

Q&A with an Intellectual Property Attorney on How Freelance Writers Can Prevent Copyright Theft

Question: I want to do a post for my website within the next couple of weeks on copyright infringement and how self-published authors like myself can protect our works online. I’m not naive (worked in legal publishing for years — on the editorial side), so I know that nothing is 100% proof. Can you give some insight on this?

Answer: Copyright Law 101 — Copyright protects a literary or artistic work that’s fixed in a tangible medium (ex: when a song is recorded or a news article is written).

Once the creative work [eg, ebook] is “fixed” then, presumably it is capable of being reproduced, adapted, distributed, or performed or displayed publicly. This litany of uses make up the “bundle of rights” that a copyright owner holds. Therefore anyone who uses a copyrighted work without right, permission or defense will be liable for copyright infringement.

The cost to file a lawsuit is relatively low. And with the statutory damage awards available in copyright infringement suits (anywhere from $200 – $150,000 PER infringement), the potential gain — either with a successful suit or settlement — can be considerable. [bolded emphasis added]

In a case where the copyright owner (eg, ebook writer/publisher) sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of . . . $150,000. Source: U. S. Copyright Office: Copyright Law.

Read full article, Can you REALLY copy an ENTIRE news article online and claim fair use?

Editor Note: Bottom line writers — if you find that your stuff has been stolen, it’s worth it to sue! Copyright theft is the new white collar crime, in my opinion, and courts are going to start taking copyright infringement much more seriously – and levy heavier penalties and maybe even jail time.

Question: I’d really like to know — once you discover that your work has clearly been plagiarized/stolen, what steps can you take legally to put the other person on notice that, “Hey, this is mine. I know you stole it, and if you don’t remove it pronto buddy, I’m gonna sue you.”

I’ve filed DMCA notices and all that — and they seem to work just fine for some. But, is there a “scarier,” for lack of a better word, legal tactic that can be used to get the perpetrator to say, “Hey, she’s serious, better remove her stuff.”

Answer: An online work is no different from its physical counterpart, except for the way the information is viewed or perceived.

The same law presented in Copyright Companion for Writers and Literary Law Guide for Authors applies to works displayed and distributed on the Internet, despite the all-too-prevalent erroneous assumption that if it’s on the Internet it must be free for anyone and everyone to use.

By law ISPs have to remove the stuff. It’s impossible to police infringement on the front end – what people actually upload to the Internet – but to avoid secondary liability for infringement ISPs must follow the DMCA guidelines regarding takedowns, as you are aware. This is a method to control infringement on the back end.

It’s far easier to get an ISP or OSP to remove the content than the actual content provider. [emphasis added and I’ve discovered this first-hand] So although I can certainly understand adding additional ammunition to discourage infringing activity, other than building in technological protections like disabling the cut & paste or print functions etc. the back-end approach via ISPs and OSPs is really your best and most time and cost-efficient approach.

Speaking of, following are a list of ways to reduce [copyright] infringement of your material on the Internet and to encourage responsible uses:

  1. Include copyright notice (ex: 2011 Tonya M. Evans. All rights reserved) at the top of each post.
  2. Include clear instructions for permitted uses if you encourage copying, reposting and sharing socially. Also note whether your permission includes commercial or only non-commercial uses.
  3. Disable the copy + paste functions in your html code.

If you have a Word Press blog, you can use WP-CopyProtect plugin to disable right click in your blog.

Read the full post, Copyright Protection in the Digital Age.

Question: Libelous contentI’ve had a cyber stalker for about a year now who’s posted libelous content about me all over the web (https://inkwelleditorial.com/scam). I think it’s actually kinda helped my business, so haven’t worried about it too much. But recently, he attacked another business owner’s site that wasn’t mine (but he claimed it was), so I want to proceed with a civil suit.

I can prove everything — as I’ve saved all correspondence, screen shots, etc. I want punitive, compensatory and any other damages I’m entitled to. How do I proceed?

Answer: You’ll have to contact a lawyer who can actually represent your care. I have several referrals listed on the Resources page of my website at http://legalwritepublications.com/resources.

Note: The following did not come from Professor Evans. As she astutely alluded to, each case is different, so it’s best to consult with an attorney. Following is what I found doing some web research.

What Exactly Is Libel?

In order to be libelous, a statement must meet these conditions: Note:  Source for most content in this section is from PublishingCentral.com.

  1. There must be some negligence on the part of the writer
  2. It must be defamatory (false and injurious to the plaintiff’s reputation)
  3. It must be published (distributed to someone other than the plaintiff and defendant)
  4. It is not privileged communication*
  5. The plaintiff must be identifiable to the reader

How to Prove Libel

There are several ways a person must go about proving that libel has taken place. For example, in the United States, the person first must prove that the statement was false. Second, that person must prove that the statement caused harm. And, third, they must prove that the statement was made without adequate research into the truthfulness of the statement. These steps are for an ordinary citizen. Source: Wikipedia.

I can prove all of this in my case, so it’s a pretty easy one to win in court. That’s why it’s important to keep everything (correspondence, screen shots, etc.). Oh, and in the case of someone trying to hide their identity, a subpoena from an attorney served on the host/IP company will make them supply you with the identity of the perpetrator.

Remember, if what someone writes about you is true – even if it’s unflattering – it’s not libel. But, if they intentionally and maliciously lie about you (eg, claiming you stole money from them when you never even did business with them, or that you’re defrauding customers out of money when you’re not even privvy to this info because that’s not how you operate your business)  then that’s a clear-cut case of libel.

Penalties for Libel: Be Careful What Write About Someone on the Web – It Can Cost You – Big

First, if you’re the defendant in a libel suit, you must pay all your own legal fees, no matter whether you win or lose.

Secondly, in many states there are both civil and criminal penalties for libel, so along with monetary penalties imposed in a civil case, a defendant found guilty of libel may also face a jail term in some states.

Legal fees notwithstanding, libel is not cheap. Most of the damages awarded in libel cases are general or compensatory (compensation for humiliation, grief, etc.). Since there are no limits or standards to these sorts of damages, they often surpass the $1 million mark.

Editor Note: After talking with a couple of attorneys and doing in-depth web research for this post, I’m going to proceed with my civil suit. I was going to let it go, but when I found out how relatively easy my case would be to win — and the fact that this perpetrator continues to harrass me and my businesses online almost a year later, I thought, “Why not?”

Following are all of the links Professor Evans sent. Bookmark her site, for it is packed with info on this subject and trust me, if you write online, at some point, you’re going to find yourself needing the advice she dispenses.

Can you REALLY copy an ENTIRE news article online and claim fair use? http://tinyurl.com/3tqtyyc 

Copyright Protection in the Digital Age: http://tinyurl.com/3tcnnud 

Copyright for Writers on the Internet: http://tinyurl.com/3fn9elg 

The Difference between Fair Use and Public Domain: http://tinyurl.com/3wsleuz

And, just so my carcass isn’t in hot water with Professor / Attorney Evans, following is the disclaimer I’m posting for her so generously allowing me to reprint all of the aforementioned material:

About the Author: Tonya M. Evans is an intellectual property expert, award-winning author of a series of legal reference guides for writers and professor of law at Widener University School of Law. Visit her website and blog at http://www.legalwritepublications.com and follow her [on Twitter] @LegalWritePub.

Copyright Weapons for Freelance Writers

Check out Professor Evan’s book, Copyright Companion for Writers, and a few others she has that she’s bundled together so you can have all the legal weapons in your arsenal that you need — at your fingertips — to protect yourself from copyright theft.

Love This Idea: Affordable Legal Help for Freelance Writers

I’d thought about something similar myself – brilliant! Any baby attorneys out there willing to be takers? I know I’d regularly contribute a certain amount each month.

The following is from the post itself – and comments left on the post, A Case of Copyright Infringement (A True Story).

It would be nice if we could pay a fee into an Indie Author Defense League so if Amazon or other booksellers decide to turn their noses up on indie authors, we’d have a professional and legal organization that would hold them accountable for checking their books more thoroughly when it’s time to publish them.

. . . as authors, we could raise money for such an endeavor by making a certain of the month the day we encourage indie authors to donate their profits or a percentage of their profits to the legal defense fund. For lawyers, it would be a good place to advertise affordable representation, as those earning on their books have need for legal representation at an affordable rate.

And FYI . . . There IS an organization that fights for writers. It is called the National Writers Union. http://www.nwu.org. . . . [One writer recounts] . . . They have helped me numerous times when I have had contract and infringement issues.

Further Reading: Other Posts Where Ebook Authors Recount Copyright Theft

Drew Wagner: Free Ebooks Stolen and Sold on Amazon without His Permission

Copyright Infringement: Author Selling Ebooks on Amazon Whose Work Was Stolen and Sold Under Another Name on the Site

The Kindle Swindle: How Spammers Have Moved from Content Farms to Ebooks

I know this is a lot of info, so bookmark the page to come back to later if you can’t ingest it all in one reading. And feel free to share it, as we all have to look out for each other and the more info we’re armed with – the better.

And, happy writing!

how-to-write-an-ebook-sm

P.S.: Quickly Become a Published Author: Learn how to FINALLY get that ebook out of your head and onto a page. Just think, you could be done and making sales this time next week!

P.P.S.: Want to start a successful career where you have the mobility to live and work where you please? Visit our freelance writing bookstore for a ton of opportunities (freelance writing and internet marketing) to get you started.

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    Comments

    1. Copywriter says:

      You’ve got great insights about freelance writing, keep up the good work!

    2. books for ipad says:

      – Hello I like your website alot. Will read more.

      Thanks for publishing. 🙂

    3. Glad you enjoyed the post Rebecca and found it helpful.

      As for your stuff being stolen, it’s happened to me so many times that for the most part, I don’t even worry about it. That is, if it’s articles. When it’s one of my ebooks, that’s a whole other story.

      As the attorney alluded to, there’s no 100% way to stop this from happening, but if more writers started taking action, it would cut down on it. And, this is why I wanted to let others know how relatively easy it is to file — and win — lawsuits.

      Thanks for dropping by and lending your experience to the conversation.

    4. This was a lengthy post packed with good information. It’s also a heavy topic. I’ve had content I wrote for a client posted on other sites. I discovered this because I was signed up with Google Alerts (still with them) and would see my posts on other sites. Some of the websites gave a backlink, others didn’t.

      Personally, I’m not sure what I’d do. Thanks for the great reference.

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