Have you ever had your work plagiarized? Unfortunately, I have—several times—and other designers have too. So I invited attorney Matthew Johnston back to talk about copyright infringement and your rights as a designer, so you can protect your creative work. You’ll also find out ways to search to see if your work has been plagiarized and what to do if it has been.
Matt Johnston is an attorney in Frederick, Maryland, who works with creative professionals and small businesses on business formation, employment law, contracts, copyright and trademark law. Matt has been in private practice since 2007, and in solo practice since 2012. He serves on the AIGA Blue Ridge board and is a frequent speaker on a variety of topics related to small businesses. You can find him online at MattTheLawyer.com and Johnston-Legal.com.
Colleen Gratzer: Welcome back to the podcast, Matt! I’m so happy to have you here for a third time.
Matt Johnston: This is getting to be a pattern.
Colleen: I like it.
Matt: I like it. I’m having a good time.
Colleen: Yeah. Great. I reached out to you about doing an episode on this topic of plagiarism and copyright infringement after I experienced plagiarism and copyright infringement yet again. It’s happened to me with designs that I have in CafePress and Zazzle stores. It’s happened with text being copied verbatim from my business website. Just recently, I found out that someone took a transcript in its entirety from my podcast and posted it on their blog.
Colleen: Yeah, I think a lot of people think that it’s okay to take work and use it as long as you give credit, even though you’re not asking permission.
Colleen: I think that’s a huge misunderstanding.
Matt: That is a massive misunderstanding. Just because you give credit doesn’t mean you have received permission. So I mean, if you’re going to use somebody else’s work, you have to get permission or it has to be fair use, and fair use is still an infringement. It’s just an excused infringement.
Colleen: Yeah. I have since resolved these issues—well, most of them. But since I know this happens to other designers, I wanted them to get all the facts about their rights and how to handle this if and when it happens to them too.
Matt: Normally we would spend probably close to about three hours unpacking all of that stuff.
Colleen: Oh, wow.
Matt: But let’s start with a couple of concepts. The first one is just a reminder that the person who creates something, whether that’s a design, an image, a photograph, written text, whatever… Once that’s created and put into what the law says is a “fixed medium:” a recording of a website, whatever. The copyrights—there are multiple rights—automatically accrue. So it’s yours.
From that point on, the question becomes one of whether or not it’s going to be assigned to somebody else, like under, you know, a work made for hire doctrine or something like that, or it’s actually transferred according to a license or somebody bought it.
It’s a crazy kind of starting point when people think about, well, if you publish something and you put it out there, isn’t that free for me to use? The answer is usually no.
Matt: But the fact that it happens is often a calculated risk that people make. They’ll make the decision, well, I know it’s not really mine, but I’m just going to use this, get a little bit over here or I’m going to hope that they don’t find out. The problem is is it’s not hard to search.
Colleen: Right. That’s how I found my latest one. Yes.
Matt: Yeah. How did you find out about the transcript?
Colleen: I was doing something completely different. I was searching online for the title of the podcast. So I just Googled “Design Domination,” but I was looking for something totally different. Now I can’t remember because of the rage that I experienced upon finding that violation. I think it erased from my memory what I was originally doing.
But yeah, I just, I Googled the podcast name and then I was like, what the heck is this? And then it had my picture, which was a stock image that I had modified with a screenshot that I created. So they were not only using my transcript verbatim from the website, but they were also using a stock image without having the right to use that either.
Matt: So it was your stock image that you had created of you?
Colleen: It was the free stock photo. But then I had added a screenshot to it.
Colleen: So they didn’t have any kind of license to use that and they didn’t ask any permission either.
Matt: Okay. Yeah. That’s ballsy.
Matt: For lack of a better term. So oftentimes people will do this and they’ll say, “Oh, well, I’m being helpful.” I would imagine that if I spoke to this person who did that, they’d be like, “Oh, well, I’m publicizing her podcast.” Well, that may be true, but you’re still using things without permission.
Colleen: Right. And there was a tiny link that said like, you know, “You can find it here.” It was so tiny, but there was no need to go to the website. My name wasn’t even attached to it anywhere. So it was just totally taken from the website and copied and pasted into their blog like it was their own. It wasn’t like they put a summary and then, “Hey, finish reading this here” and had the link.
Matt: Yeah. The funny thing is the court system—the law—doesn’t recognize plagiarism. “Plagiarism” is a kind of an academic term that you hear it and academic circles, colleges and things like that. But the courts do recognize copyright infringement, and that’s what they call it. It’s copyright infringement to be using somebody’s work without permission.
There are mechanisms by which you can enforce your copyrights. I guess we’ll go into that in just a second.
But when these cases happen, I generally work from the viewpoint that most people out there probably don’t know the full scope of what’s going on. I try not to ascribe to them evil intent until they show me that they have some bad intent.
So what you have done, I’m guessing, is reached out and saying, “Hey, you know what’s going on here? That’s not cool.” I find that most of the time that works.
Colleen: Yeah. That’s what I did exactly. But I’ve had situations where people have used my design work as their Facebook profile pics and I go to them and just ask them for a credit and a link to my Zazzle or CafePress store because, I mean, for crying out loud, the money I make from those stores I donate to rescues. A lot of people in rescue go and use those designs because they like them, and I’m fine with that, but I’m just like, “Hey, could you at least put a credit line with the profile pic?”
I get nasty comments back to me and they’re like, “Well, I just won’t use it then,” and I’m like, “I’m fine with you using, I’m politely letting you know I just want a credit line.” And people get crazy.
Matt: I think people have… I mean, this is a bit of a tangent… But people in the online world have gotten used to this notion that they can obtain and see and use content essentially for free
Colleen: It’s like their inventory if they can find it in Google.
Matt: Right. It has created this notion that, “Oh well, I found it online. They put it up there. It must be okay to use. It’s not behind a pay wall or anything like that.”
Matt: But it’s still this notion that it’s somehow free to use. Then when you tell them not only is it not free to use or if you is free to use, I want some sort of credit for it. I don’t know. I don’t know why it offends people.
I mean, if I walked up to somebody and took, you know, a photograph of their kid off their living room wall and put it in my catalog selling kids’ clothing, they’d be offended, and they’d have every right to be offended.
Matt: But that’s essentially what’s happening just because we see it online. It seems like we’ve bypassed that notion. I’m hoping that it’s getting better, but I’m not always certain that it is.
Colleen: Yeah. So what are some ways that designers can search to find out if their work has been plagiarized?
Matt: Well, first of all, it, it is the designer’s responsibility. There’s multiple ways to do it, but you know, Google is probably your best starting point. You can go to Google, it has a very robust image search function, and you can take your image that you’re interested in, you can load it in there and ask it to find everything that works.
Searching text is a little bit more difficult, largely because you can look for some sort of clever word put together or you can search an entire sentence and you’ll get hits that way. Most search engines are pretty good about finding those sorts of things. They’re actually, that’s their purpose. And then if you find infringement, just take screenshots, screenshots that include, you know, website addresses. If you can get details on say IP addresses or things like that, that’s great.
Colleen: And then you could go to the Wayback Machine and you could look up when you first published it and take a screenshot there.
Matt: Sure. Well, even if you publish it, like if you publish it, for example, through a blog, through a WordPress blog or something like that, the WordPress system keeps track of when you created it, when you entered the post. So created it and when you published it for public consumption, it can log the date and time that you made some changes. We’ll log IP addresses and yeah, the Wayback Machine does work, it’s not perfect because sometimes it doesn’t index certain things and if something is behind a pay wall, for example, the Wayback Machine typically does not index that page. There may be some exceptions.
Colleen: Yeah. I’ve also used Copyscape.com, where you can put in a URL and then it will show you page results around the Internet that might have copy that matches yours, but that may or may not be in violation.
Matt: Right. There’s probably many, many other tools out there. There are certainly paid services out there that will help you do your copyright policing.
But, you know, going back to the situation… If you’re the creator of it and you find that it’s being, you know… Could you contact a lawyer? Should you? You should—when it gets to a point. Hiring a lawyer to send out a nasty gram is usually when things really get crazy.
If, for example, you came across this person who had this infringing transcript that was up or the work that you were using, and I sent a letter out, everybody gets defensive really, really fast. Sometimes it’s better to just send an email, send a message saying, “Hey, look, that’s my work. I’m flattered that you think that it’s good enough to use, but that’s not cool. What you’re using it is not cool.”
I find that oftentimes people will go, okay, and they either pull it down or they’ll give you credit or something. They’re willing to have a conversation and it as long as they’re willing to have a conversation, then it’s worth continuing the conversation.
But if you get somebody who’s like, “Forget you, I’m just going to go ahead and use it,” that’s probably when you want to contact a lawyer and start figuring out what your rights are.
If it’s your work and it’s a copyrighted work, then it is your right to determine who gets to use it and who doesn’t.
So then the question becomes is how do you protect the copyright? As I said at the beginning, the minute you created and it’s in a fixed medium, the copyrights attach, but if you’re going to sue for copyright infringement, you have to get that document from the government.
Suing for copyright infringement requires one thing and you have to have the registration.
Now getting the registration is pretty straightforward. It’s an online form. Now you go to copyright.gov and right there on the left side of the screen has “Register a Copyright” and you submit your work. For most copyrights, it’s a $55 fee. There are some things that would be a little bit less and some really sort of esoteric things that would be more expensive. Once you do that, you’re waiting about 10 months before you get the registration.
Colleen: Ten months? Wow.
Matt: Ten months! Unless you pay an $800 fee to expedite it.
Matt: Yeah. So let’s assume for a moment that you’ve got a potential copyright infringement lawsuit pending. You can go ahead and register your copyright. You pay the $800 fee. It takes a few days, I think, and then you have it.
Recently, the Supreme Court made that very clear. They issued and opinion at the beginning of the month. There was some disagreement among the intermediate courts of appeal about whether or not you actually had to have the registration—the actual registration document—or if it was enough to have submitted an application for registration. The Supreme Court says, well, the law says that you have to have the registration. So you have to have the registration.
It means that in order to get that registration quickly, you may have to expedite it and pay the extra fee. Once you have that the registration, you were in a position to be able to sue in federal court for copyright infringement.
Colleen: If you do have a copyright infringement case that you’re going to initiate against somebody, besides having this registration in place, what kind of ways could a designer show proof of this infringement? Would it be going to the offending website and then taking screenshots and things like that?
Matt: Oh, yeah. That’s how you would do it. The claim that you filed in federal court would be based upon the notion of: I have this registration, this is my work. All right, and you have the registration number and all that other stuff. This person over here, the defendant, used these aspects of my work or they use the whole work or something like that, and here’s my evidence of that. You’d have screenshots or you would have an affidavit. You could have those sorts of things that would show that this is what the claim is.
The hard part about litigation, any kind of litigation, is that it sometimes takes awhile. Even once you file the complaints, you’re probably still looking at several months before you get any sort of potential for getting close to a trial. So it is sometimes a slow process. But oftentimes once a lawsuit is filed, there are settlement negotiations that start, and things like that. Most civil cases in court settle—probably 95% of cases settle.
Colleen: What kind of factors determine how much you’re going to get, financially, or whatever the—
Matt: Right. So, we’ll start with one thing. If there is an infringement, it either is infringing or does not. It’s kinda like being pregnant. You either are or you aren’t.
There was actually a case—probably towards the end of last year—where somebody was claiming an innocent copyright infringement. Well, innocent or not is irrelevant. You either have infringed or you haven’t. Intent and things like that are functions for determining damages.
Damages could be anywhere from sort of nominal damages, basically the court saying, “Yeah, you did it, bad boy,” whatever, to if there is a knowing and willful violation in infringement, sort of a knowing infringement. Let’s say you had given somebody, “That’s my transcript,” for example. “You cannot use it without my permission. I am not giving you permission without a license fee,” and they go ahead and do it anyway. They had been put on notice and that’s a willful violation.
The damages at that point can be as much as $150,000 per use. Let’s say they published it on three websites. That’s three uses. That’s $450,000 in damages.
Matt: And these are statutory damages. You wouldn’t have to prove that you were damaged by $450,000.
Matt: To claim statutory damages, you have to have that registration. All we would have to prove is that they knew that they were violating your copyrights, which is not always the easiest thing to do. Sometimes the statutory damages are lower than that. The court takes into account a number of factors when they’re determining what the damages are.
Colleen: So every time that a designer creates a project for a client or for themselves, they would have to register every single design.
Matt: If they are in a position where they need to sue for infringement, yes. Obviously there are some interesting problems with that. Right? First of all, it’s expensive to do.
Matt: Second of all, some of the work that designers do is going to be owned by the client and so it doesn’t seem to make a great deal of sense in that case to register a copyright that you’re just going to turn around and assign to the client. So most people don’t.
Where it becomes a problem… and really the only leverage that designers would have if their client is not paying them is to register the copyright. If that happens and the client is starting to use the design without paying for it, really, the only leverage that the designer has is to register the copyright and threaten an infringement suit.
Colleen: Oh, well, that’s interesting. Well, a lot of designers and I’m included here, we retain our copyrights, we allow for reproduction rights. So in that case, we would still own the design. But you’re saying if it’s like say like a work for hire or if the client is taking on the copyrights, that would be a way that you could go about that if they’re not paying you.
Matt: Right. So, I mean, even under the work made for hire doctrine there is the presumption that the client has to pay for it. Otherwise, it’s not work made for hire. It’s stealing. It would be akin to going into a restaurant, ordering food and dining and dashing.
If the client’s not paying for it, the work made for hire contract hasn’t been completed because there’s been no payment. So the the designer could register the copyright and threaten the infringement suit.
If you and other designers that retain the copyright and grant reproduction rights, if the client goes outside of the reproduction rights that they’ve been given, that’s infringement and that’s actionable. That that is something that you could sue somebody for. Probably not the best use of your time right away, because, again, sometimes it might’ve been, “Oh you know, we forgot to. We were going to do this and we forgot to contact you.”
Matt: You sort of retroactively fix it.
Colleen: Like a misunderstanding—or ignorance—instead of like somebody trying to… “Oh, I like your website. Let me redesign mine to look like yours.” ’Cause I’ve had that happen too. That was a really interesting one. Or, you know, “I’m taking the transcript off your website.”
Matt: So, I mean, some of it’s misunderstanding, but if you’ve granted reproduction rights… I’m a big believer in Hanlon’s razor, you know, never ascribe to malice that which can be explained by stupidity. Some people, it’s not they’re being stupid, it’s just that they’re just not thinking.
Matt: Most people want to be on the right side of law. Most people want to be doing things fair. Once you just point it out to them, most people are happy to figure out some sort of resolution to the problem. If you get into a copyright infringement suit… I always look at that as kind of a last resort. Something has broken down. Litigation is expensive, it’s time consuming, and it’s rarely going to be a situation that even if it turns out 100% great, it does come with its own costs in terms of psychic costs, and, of course, you’ve got to pay a lawyer, unless you want to represent yourself in court. Good luck with that.
Colleen: Is that a more difficult type of case to win when representing yourself?
Matt: Oh, absolutely. Being in federal court, there are rules. The rules are published, but if you’re suing a defendant for copyright infringement there, they’re going to hire an attorney. I tell people all the time, all things being equal in a case, oftentimes the lawyer who knows the rules better is going to win.
But since most designers have a company—an LLC or something like that—in most cases, you have to have a lawyer.
Colleen: Oh, really?
Colleen: Oh, interesting.
Matt: Companies can only act through humans. A company that is filing a lawsuit in almost 99.9% of the cases, if you’re in federal court, you have to be represented by an attorney.
One of the things that we had sort of chatted about before is what happens if you do file a suit. When you file a suit, the defendant is going to say, “No I didn’t.” They’ll do it in a sort of a nice lawyerly way. But basically they’re going to say, “I didn’t do it. It’s not infringement. Even if it was, I have fair use rights.”
So you get into the fair use doctrine. Fair use is a defense. In order for fair use to even be considered, there has to be some potential for an infringement. Somebody has used your work in some respect. The defense of fair use basically says that even though the copyright holder, the creator, has these rights that are exclusive to the copyright owner, fair use is an allowance, or legally termed a “privilege,” to allow for a class of uses, largely uninhibited and some of the most common ones are things like news reporting, criticism, academic use in a classroom. Fair use is used to allow for those things to happen.
Colleen: Well, could that also potentially be like somebody sees a project on my website and then they put it an image of it on their blog and then they talk about it. They might say, “Hey, this is crap,” or “Hey, this is freaking awesome.”
Matt: Yeah. Doing that is considered criticism and it would be a fair use in most circumstances. Now there are some things that a court has to look at when determining fair use. Courts are required by law to look at—and here’s where we get a little lawyer nerdy… They’re supposed to look at:
- the purpose and character of the use;
- the nature of the work, which is the nature of the work that has been infringed upon;
- the amount of the work that has been used; and
- the effect of the infringing use on the potential value of the infringed-upon work.
All right, so let’s break that down a little bit.
So purpose and character of the use… We’re talking about somebody who copies some segment of a website that you have done and they’re criticizing it there. They’re doing a critique on it. Maybe they don’t like the colors, whatever. The purpose of that is not to steal your work, but to criticize your work or to instruct the public about the elements that went into it.
Colleen: Or maybe praise your work.
Matt: Or maybe praise your work. In that case, they are using it for a critical approach. As such, it would be most likely deemed a fair use. If the nature of your work lends itself to easy identification—
Colleen: Like if they were to provide a link or something or like to say that it’s “Designed by Gratzer Graphics” or if it has my business logo in there or something?
Matt: I mean, yeah, it they could determine the source of the work or they recognize the work. Think about some of the iconic pictures like the Beatles in the picture of them crossing Abbey Road on the cover of their album. Okay. That’s an iconic picture. If you are using the Beatles picture, that could be an infringement thing because the surviving guys in there, the estates of those who are dead, they own the rights to that probably.
If the nature of your work is such that it is easy to copy, easy to use and stuff like that, the courts start to get a little bit pickier. If it’s a large-scale work, like a multipage website or a book, they each have their own sort of characteristics.
One of my favorite copyright cases has to do with the Rolling Stones and k.d. lang. The Rolling Stones had a song called “Have you seen my baby?” It had been put out, and k.d. lang had a song… Her big song was “Constant Craving.” They have the exact identical melodic, the string of notes and stuff like that. I’m pretty sure I got this right. When k.d. lang was writing the song, she had heard the Rolling Stones. One of them heard the notes, copied the notes, and in order avoid a copyright infringement lawsuit, they simply agreed to give the others songwriting credit so they avoided a suit.
The whole purpose of the fair use is to allow for people to sort of think about it and criticize it and report on it and not to get into a problem with the copyright holder.
Colleen: But when someone’s doing fair use, if that’s their intention, does that mean that they should or shouldn’t be like, “Hey, this work was designed by _____.” Should they not give you credit or how does that work?
Matt: I think it depends heavily upon what they’re doing. If they’re going to be criticizing the work, whether good or bad, they should be providing a link to provide context. Are they legally required to do so? No, but they do have to be mindful of how far they go.
That gets into the third factor, which is the amount of the work that is used. Let’s take a design that you did—
Colleen: Others already have!
Matt: Yeah. Others already have. Let’s say a designer looks at it and they go, “Oh, I really like that graphic,” and they use a whole bunch of the graphic, whatever you created. That’s going to be a problem.
Let’s say they’re looking at a photograph that you took for whatever reason, and there’s some clouds in the sky and they go, “Oh, that’s such a cool cloud pattern. I want to use just that.” They just use that little bit without using any other aspect of the photograph. Chances are they’re going to be in a fair use world because they’re not using the entire work.
Colleen: And it wouldn’t necessarily be recognizable by me if I saw it too.
Matt: Right. Not necessarily. So when the courts are looking at the amount of the work used, it’s often used in conjunction with what’s the purpose of this potentially infringing use. Amount of the work matters.
There was a famous famous case in copyright circles. I know I talk about famous cases, and most people don’t give a toss…
If you’re aware of Google Scholar, one of the things that Google Scholar had done was digitize millions of books from a bunch of libraries, and you can do research through Google Scholar and find books that have a particular phrase. It’ll return four or five lines of the work. A whole bunch of authors and authors guilds, the writers guild sued and the court said, well, they’re not using that much of your work. They’re using like four lines, so whatever phrase you searched on, you’d get like the two lines before and the two lines after.
The court said that that’s not enough of the work to constitute an infringement. The lawyers were arguing, well, somebody could piece together an book doing it that way. The court was like, okay, yeah, sure. But at what time and cost?
Which sort of gets into the fourth factor that they’re required to look at which is what’s the effect of the potentially infringing use on the overall value of the work? In this Google case, four lines is not going to impact the value of the original work. Using a couple of of square centimeters of a picture of clouds that you took a picture of, you know, a sculpture, it’s probably not going to be considered infringing because it’s not truly affecting the value of your work.
So the courts are required to look at those four factors. They can look at other things, but they’re looking at those four factors and it really does boil down to does this infringing use impact the value of the work? For example, if they’re using it in a commercial context, you know, they took your website design and they copied it and they sold it to another client… That’s commercial use and, yeah, you’re going to lose on that. Sorry I’ve got to do my lawyer thing: You’re most likely to lose on that.
I know it gets really sort of fact specific, and it gets really hypertechnical and it may be more than what your listeners are particularly interested in. But if people are using your work and it gets to the point where you have to sue, you just have to sort of be prepared to address the argument of fair use.
Colleen: Because it’s going to come up on it from the other party.
Matt: It is the most used defense in copyright infringement cases. If it’s not asserted, I would be floored if it’s not asserted as a defense.
Colleen: Okay. I have a question back when you were talking about copyright registration. Okay. So does it ever matter when you register a copyright versus the date of the infringement. If you don’t register the copyright on something until after you see that somebody has plagiarized your work… Like let’s say they plagiarized your work on March 1st and then March 3rd, let’s say, you go and register that copyright. Does that matter? I mean that you didn’t register it prior to the infringement?
Matt: Yes and no.
Matt: Ugh. Here’s the important part.
Colleen: Because we can’t go around registering copyrights on every single piece of work that we do.
Colleen: Like you said earlier, it’s just cost prohibitive.
Matt: When you file the copyright registration, you have to tell them when you created the work and when it was published. You can do it after the fact and you could do it even after the infringement. You just have to be able to prove, well, this is when I published it. So if you published it on a blog, for instance, there’s the date timestamps of the blog.
Matt: And there’s metadata behind it and all kinds of stuff that you could get into. But you just have to assert that this is when I did this.
Colleen: That would be in the electronic file as well.
Matt: Yeah, absolutely. So, for example, the recording that we’re doing right now, you’ll publish it at some point, but this recording itself, the recording is now subject to copyright even before you publish it. So when we’re done, the copyright attaches.
The date for that purpose doesn’t matter as long as you have the date of when you published or created the work. There are a few sort of technical tines. For example, if you register the copyright within—I want to say three, it might be six months. If you register between three and six months of the creation, you are entitled to the statutory presumption of creatorship authorship and ownership. So there’s a statutory presumption.
Somebody can try and overcome it, but it’s hard to do. But if it turns out that you need to register the copyright because somebody stole it three years later, you still have the right to go back and do that. You don’t have the statutory presumption. You would have to prove when it was published.
The question that you presented, if somebody infringed it on March 1st and I registered the copyright on March 3rd, that’s largely irrelevant except and except in sort of the legal damages world and and proof world and an evidence world. If you’re in a situation where you do have to register a copyright in order to protect your rights, the fact that you found out about it and then registered it is not a bar to filing the suit.
Matt: In general, I try and tell designers that designers or anybody, any creative that has created something and they see people infringing on it, reach out first in as non-confrontational a manner as you can. Don’t ascribe malice.
You have to make a calculation. There’s a cost-benefit calculation to it. I don’t say ignore it, but, you know, if it’s a one-off thing and it’s going to cost more in time and effort to police it…
Colleen: Right. It’s a pain in the butt.
Matt: Then make a decision along that. But if it’s an ongoing sort of problem, it’s not worth it. You spent a lot of time and energy and effort and, you know, creative juices to create something. Yes, it’s great that you’ve put it out there for public consumption, but it doesn’t mean the public gets to just rip it off.
At the end of the day, it’s the creator who has to police it. You know, the government doesn’t do it, the police can’t do it. It’s up to each individual creator to make the decision as to what is reasonable and what is not. If you think the use is unreasonable, the law protects you as the creator.
Colleen: Well, thanks for coming on again. This has been great.
Matt: You’re welcome.