What do you do if your intellectual property is being infringed upon in the Creator Economy?

A copyright registration is necessary to sue in federal court. To be eligible for an award of statutory damages and attorneys' fees in an infringement case, the work must be registered before infringement commences, or, if the work is published, within 3 months of publication. Also, if you are using a brand name or logo consistently across your work, then you should explore trademark protection. The “start date” or “priority date” for your rights begin when you established your brand openly to the public. In most cases, this means the date of your first sale across state lines. But the rules surrounding the “first use in commerce” are complex, you should speak with an experienced trademark attorney to figure out how the rules apply to you.

Setting up Google image search tracking can be fairly straightforward. Just input images of your works into reverse image search to see what results come up.

Two things I tell all clients: 1. Document the infringement! You need to be able to show the infringement occurred and the severity of it. Screenshots, recordings, timestamps. You need all of it to point to the actual infringement. 2. Do not contact them about it. Hire an attorney and let them handle it. Trying to stop the infringement right away might not be the right decision. Also, if you go about it the wrong way you could end up getting hit with a defamation counter claim.

Placing someone on notice is important because it enables you to convincingly prove the infringer has “actual knowledge” of the infringement. Actual knowledge of infringement is a very important factor courts examine when deciding to award damages. Even if you don’t end up in court, the mere threat of enhanced damages can encourage the infringer to settle quickly.

Consult with an attorney before you send a notice out. Sometimes you can send a C&D notice without hiring a lawyer, but if you say the wrong thing in a letter, it can have serious repercussions. For example, if you make strong threats of retaliation or litigation, you could give that infringer an opportunity to SUE YOU in federal court for a “declaratory judgement action.” (A DJ action is the infringer asking the judge to “declare” that they don’t infringe.)