Creative work protected by copyright potentially has tremendous financial and commercial value. To realise that value, the creative material (often called ‘the work’) must be capable of being licensed (or assigned/sold) for money. To be licensable, it must be protectible.
Copyright automatically protects authors from having their original works copied, adjusted, or distributed by others.
There are some exceptions to the rule (see our guide to copyright protection for the full list), but in general, when someone uses work without permission, this is known as copyright infringement. Individuals and businesses can both be treated as infringers of copyright.
If the author (or copyright owner) objects to their work being copied, they have a legal right to put a stop to further infringement by enforcing their copyright.
If you’ve already read our introductory guide to intellectual property, our guide to copyright protection, or you’re familiar with some of the core features of copyright protection already, you’ll know that:
• the automatic grant of copyright protection can apply to artwork, musical scores and lyrics, books, software code, plays and poems, gifs, cartoons, photos and videos, for example
• it can last for a very long time
• protection only arises where the creative work is genuinely original
• and it is recorded by some tangible means. (However novel and creative an idea, if it is not physically manifested in some recorded format, it will not be eligible for copyright protection.
You should also know by now that the first creator of the copyrighted work may not be its legally recognised owner and that copyright can be quite easily infringed.
Here in this guide, we’ll be looking at how copyright in a work is best evidenced and enforced.
How is copyright enforced?
If the author/owner has proof that the copyright belongs to them, they have a few main routes of enforcement to choose from:
- A cease and desist letter: This is a communication that the author/owner sends to the infringer, informing them that they’re breaching copyright law and that they must stop the infringement immediately.
Initially, the author/owner may choose to send this communication directly themselves. We have a template first communication (coming soon) that you can easily configure for exactly these purposes. You’ll also find a more demanding follow-on version (coming soon) of this communication, threatening legal action unless the infringement is ceased.
And if the infringer still doesn’t respond to your satisfaction to either of these communications, Farillio’s expert legal partners can send a lawyer’s letter to the infringer on your behalf, emphasising that legal enforcement steps will be or have now been taken and requesting cooperation before matters go any further. It is worth getting advice on your prospects of success from a legal expert at this stage, especially if the infringer is proving tricky to find, unresponsive and/or based outside the UK.
2. Take down notices/requests of third-party hosts of infringing content: This is a notice/letter to be drafted by the owner/author, or Farillio’s expert legal partners on your behalf. This option is appropriate where copyright works appear somewhere on the internet without your authorisation. The notice is to be sent to the Internet Service Provider (ISP) i.e. the third party host, informing them of the offending material being hosted on their site and asking them to take it down.
The author/owner may choose to send this communication directly themselves. We have a template take down letter (coming soon) that you can easily configure for exactly these purposes.
If the infringer still does not respond to your satisfaction, the take down letter could be relied on in any subsequent proceedings as detailed below.
3. Mediation: This is an out-of-court solution where the author and infringer can reach a mutually beneficial solution with the help of a third party. You do, however, need the co-operation of the infringing party to attend any such mediation session, so mediation is not an option for everyone.
4. Court proceedings (legal advice is highly advised for this route): Instigating formal legal action can prevent further use of the author’s/owner’s copyrighted work by the infringer, provide the author/owner with compensation for any damage caused, and/or instruct the infringer to give all copied goods to the author or to immediately destroy them.
How can copyright ownership be proven?
Before any claim is made against an infringer, it’s important that the author (or owner) can prove that they are the legitimate owners of the copyright. A few obvious ways to do this are:
• Adding a copyright notice to the work wherever and whenever it is displayed or reproduced: There’s no official format for such notices, but this is essentially small print that states who the author and copyright owner are and that the material mustn’t be copied, altered, or distributed without their permission. The date is sometimes also added, along with the © symbol - both of which we’d recommend including. And you’ll sometimes also see a watermark added, where appropriate, for good measure.
You’ll often see these types of notice in books, on web-sites and in terms and conditions that accompany published content, including blogs and other written material, including musical, artistic and photographic works. These notices are intended to provide a clear, public statement that if someone copies all or part of something that has the protection of a copyright, they will be breaking the law.
• Using a date/time stamp: For hard copies, a date can be added to the work itself and then a copy of it placed somewhere secure for future proof of ownership. Before emails and the internet, banks, accountants and law firms often provided a secure storage facility for date-stamped originals or copies of those originals. Nowadays, copies can often be scanned, uploaded and sent somewhere digitally secure, which automatically attaches a date and time stamp to the correspondence attaching the work.
For digital work, it’s now also possible to create a digital time stamp and embed metadata into code and files for proof of ownership too. In fact, evidencing originality and ownership has never been easier.
• Registering the copyright: While copyright is an automatic right for the author, registering it with a relevant licensing agency (there are different types) provides an even stronger level of evidence of copyright ownership. Crucially, it also provides owners with the ability to license the copyright for value on a massive scale – so it won’t be for everyone, only those who want others to be using the copyrighted material and paying for that privilege.
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