My motto is that it’s always worthy to go after an infringer. Why? Because an infringement chips away at the value of your name, talent/work, and brand. There’s no other way to put it. Either you make them stop or forever hold your peace (and watch revenue that could be yours diverted elsewhere or lost forever.) Here are my top five things that people should do to always be prepared to go after an infringer.
1. Copyright registration/Trademark Registration.
If your elements of your talent, work, or brand can be registered with the US Copyright office, the US Patent and Trademark Office, or the Trademark office of your local state, DO IT. A registration certificate is often the first thing an infringer asks to see when they receive a Cease and Desist letter; not having one usually creates a sass-talking, uncooperative infringer.
2. Document your usage of your talent, work, and brand.
Keep a file or record of how you use your talent, work, and brand. Your file should include details of WHO, WHAT, WHEN, WHERE, AND WHY. For example:
- who used it?
- when did you first use your brand with the public?
- where did you first use it?
- how was it used?
- why did you use it in that manner?
Why do this? So you can have a papertrail that tells the “tangible” story of what rights you’re claiming on your talent, work, and brand.
3. Use Nondisclosure, confidentiality agreements, and non compete agreements when sharing your ideas and work.
Some elements of your talent, work, and brand may not be protectable under copyright and trademark laws. Sometimes, things like ideas need to be protected with an agreement not to steal the idea, an agreement not to tell anyone else about the idea, and an agreement not to compete with the idea. If the person refuses to sign, don’t share your idea. I can tell you some horror stories about clients who had AWESOME ideas and had not quite built the business and obtained funding yet, but shared their ideas with those who did….
You already know what happened.
4. Use WRITTEN agreements when allowing people to use your brand/talent/work.
When you allow someone to use your talent, work, or brand, put it in writing. The most important section of this writing should be something that sounds like this:
“I am allowing you to use my talent, work, and brand in the following ways, for the following time period, in the following location/medium, for the following reasons, for the following amounts of compensation (lump sum, royalties, etc), with the following compensation and accounting schedule.”
In other words, this “USAGE” section should be very detailed and very specific. This is where most infringements happen when there is an agreement in place. If you’re really saavy, you’ll follow that section with a “Expressly Prohibited Usage” section. You know, just to make SURE everyone is clear. =)
5. Document other people’s use of your copyrights, trademarks, etc. Print it. Date it. Keep it.
As you know, I love going after infringers, whether for monetary compensation for a client or simply to request cessation of usage. Regardless of the desired outcome, one thing that a client should have ready to show an infringer is proof of the infringement. If you found the infringement online, print it IMMEDIATELY with the footer that prints the date and time of the printing. If you found the infringement in the newspaper or magazine, save the it and photocopy the infringement along with the front cover of the newspaper and magazine. If you found the infringement on a flyer at a venue, keep a copy of the flyer. At an event, but you can’t take the physical copy of the infringement? Snap a photo or take a video of you standing next to it, along with the location and date…and make sure to document any identification details of who the source of the the infringement is.
6. Never base your decision to go after an infringement on the imagined cost of involving an attorney.
Okay, so I said Top Five, but I had to mention this last tidbit. Countless people that work in the entertainment, sports, and fashion industries experience infringement of their name, talent, and brand everyday. When asked why they haven’t done anything about it, their response is that the cost of hiring an attorney greatly outweighs the amount of money they were paid/amount of money involved in the infringed work, etc.
*insert screams of frustration here*
I can’t go into detail here, but when I talk to prospective clients who are dealing with an infringement, they are surprised with the costs involved. Surprised in a good way. Moral of the story: Don’t imagine the costs. That’s a horror flick waiting to happen. Talk to an infringement lawyer first.
Happy New Year! tma