10 questions when you think someone copied your work

Perhaps someone sent you a screenshot with the message, ‘Isn’t this yours?’ You recognize something immediately, but you do not yet know what happened or what you want to do about it. Answer these ten questions for yourself before you read the explanations. There is no score and nothing to submit.

Notice which answer feels obvious, which feels uncomfortable, and which you have never had a reason to consider. The uncomfortable ones are where to start.

The ten questions

1. When I say ‘they copied me,’ am I thinking about an idea, a particular piece of work, or the feeling of being imitated?
2. Do I believe I have no rights because I never completed any paperwork?
3. Am I assuming that making or paying for the work means I control every right in it?
4. Would I see the situation differently if the other person reached a similar result without seeing my work?
5. Am I treating a screenshot or an early date as proof of the whole story?
6. Do I think any use without my permission must be unlawful, even if it gives me credit or discusses my work?
7. If the use stopped tomorrow, would that give me what I want?
8. Do I feel that responding firmly means responding publicly or immediately?
9. Would I treat a platform removing the material as a final decision that I was right?
10. Am I assuming that my only choices are an expensive lawsuit or doing nothing?

Once you have answered all ten, read on.

The answers

1. When I say ‘they copied me,’ am I thinking about an idea, a particular piece of work, or the feeling of being imitated?

Name which one it is, because only the second is copyright. Copyright protects the particular words, pictures, music and other original expression you created. It does not protect ideas, facts, systems or methods, and it does not protect names, titles, slogans or short phrases, though some of those can be trademarks. 1 Someone offering a similar workshop is not copying your illustrated workbook; someone reproducing the workbook is. Write down exactly what you recognize: the page, the drawing, the paragraph. That list is the start of every next step, and the hurt is real either way.

2. Do I believe I have no rights because I never completed any paperwork?

You have rights without paperwork. In the U.S., copyright exists automatically in an original work by a human author as soon as it is fixed, by writing it down, recording it or saving it. 2 Those rights come from the federal Copyright Act, which replaced state ‘common-law’ copyright for fixed works. 3

Paperwork matters when you enforce. You cannot file an infringement suit over a U.S. work until the Copyright Office has registered or refused your claim. 29 Statutory damages and attorney’s fees are not available for copying that began before you registered, unless you register within three months of first publishing the work. 9 So if the copied work is not registered, register it now through the Copyright Office’s online system, and check the current fee before you start. 1011 A certificate gets you to the starting line; it does not settle who owns the work or whether this particular use is allowed. For the steps, read Your first U.S. copyright application.

3. Am I assuming that making or paying for the work means I control every right in it?

Check before you claim. Copyright belongs first to the author; co-authors of a joint work own it together; an employer owns what an employee creates as a work made for hire; and a transfer of copyright is valid only in a writing signed by the owner. 4 Owning the physical object, such as the original painting or the printed books, does not give you the copyright in it. 4 If you commissioned a photograph, the photographer owns the copyright unless a signed agreement gives it to you, so you may be free to use it in your campaign without having the right to license it to anyone else.

Find the contract, invoice terms or emails for every part of the project, and list who made each part. Then you can say accurately what you can protect, and who else needs to act. Who owns work made by employees and freelancers walks through the common cases.

4. Would I see the situation differently if the other person reached a similar result without seeing my work?

You should. A work is original when its author created it independently, so a similar result reached without seeing yours is their own work, not a copy of yours. 2 The question to answer is whether they could have seen your work: where and when you published it, and whether they follow, bought from or worked with you.

Trademark asks something different: whether their use is likely to confuse buyers about the source or sponsorship of goods or services. Courts look at how similar the marks are, how related the goods or services are, where they are sold, evidence of actual confusion, the accused party’s intent and the strength of the original mark. 5 A familiar color, an ordinary phrase and a copied illustration are different clues; sort yours by which right they point to. When two things look alike explains the difference.

5. Am I treating a screenshot or an early date as proof of the whole story?

A screenshot shows what was on a screen when you captured it. An early draft shows your creative history. Neither shows who owns the relevant rights, whether permission was given, or why the other material appeared. If a distributor had permission to reuse an image but not to alter it, the evidence that matters is the permission and the alteration, not which file is older.

Save everything now, while it is still online: the page with its URL and the date, your drafts and their dates, and any license, contract or message that mentions the work. Do not ask any one piece to prove more than it can. Saving evidence while the facts are still available lists what to keep and how.

6. Do I think any use without my permission must be unlawful, even if it gives me credit or discusses my work?

No. U.S. fair use permits some unlicensed uses of copyrighted work. 6 Courts weigh four factors: the purpose and character of the use, including whether it is commercial or nonprofit educational; the nature of your work; how much was used; and the effect on the market for your work. 6 Criticism, comment, news reporting, teaching, scholarship and research are examples that may qualify, not automatic exemptions, and courts decide each case on its own facts. 6 Credit is not one of the four factors: a credit line does not turn an unlicensed use into a licensed one.

A review quoting a passage and a seller printing that passage on merchandise score very differently on those factors. Run all four on the use in front of you before you demand anything. How fair use works in the United States takes you through them.

7. If the use stopped tomorrow, would that give me what I want?

Answer this before you contact anyone. Sometimes removal is exactly what matters. Sometimes the real concern is lost payment, missing credit, customer confusion, a damaged relationship or the fear that it will happen again. Each of those leads to a different conversation. A former client using an image beyond an agreed campaign is a candidate for a new license; an impersonator taking customer payments is a different problem. You are allowed to care about more than money. Write down the result you want, then judge every proposed step by whether it gets you there. What would a good resolution look like helps you choose.

8. Do I feel that responding firmly means responding publicly or immediately?

Firm means clear, not public. Save the material first, then find out how the other person relates to the work before you address anyone. A public accusation pulls other people into the dispute before you know whether a missing permission, a mistaken identity or real infringement explains it. A private, specific message that says what you made, what you found and what you want serves most aims better. Move quickly on saving evidence and on any real deadline; take your time over your words. You found your work somewhere unexpected sets out the first steps in order.

9. Would I treat a platform removing the material as a final decision that I was right?

No. A takedown is a process, not a ruling. Under the U.S. notice-and-takedown system you send a signed notice to the service provider that identifies your work and the material, gives your contact details, and states that you believe in good faith the use is unauthorized and that the notice is accurate; the provider must act quickly to remove or disable the material and tell the uploader. 7 The Copyright Office publishes a sample notice and a directory of the agents who receive these notices for each service. 7 Send a notice only for work you own or are authorized to act for: a misrepresentation in a notice or counter-notice can itself be a claim before the Copyright Claims Board. 12

The uploader can send a counter-notice, and the provider must then restore the material within 10 to 14 business days unless you tell it you have filed a court action. 7 If a counter-notice arrives and you want the material to stay down, talk to a copyright litigation attorney the same week, because that window is short and you cannot sue over a U.S. work until it is registered or refused. 9 A removal does not settle ownership, damages or permission, and a rejected report does not prove the use was lawful. Read the reason given and the next step offered. How platform reports and takedowns work covers the details.

10. Am I assuming that my only choices are an expensive lawsuit or doing nothing?

No. Between those two sit a direct message, a platform report, a limited consultation and the Copyright Claims Board. The CCB is a voluntary alternative to federal court for copyright disputes: you can claim up to $30,000 in total and up to $15,000 in statutory damages per work, you do not need a lawyer, and the other side can opt out. 12 You need a registration, or an application filed before or with your claim, and you must file within three years of the infringing activity. 12 Claims are filed online through eCCB, with the filing fee split into two payments; check the current amounts on the CCB fee table. 13

For free or reduced-cost help, the CCB lists law school clinics and pro bono organizations willing to help its participants; check that each one accepts clients where you live. 14 USAGov links to legal aid programs by state, many of them for people with low or moderate incomes. 8 A one-hour consultation about a license or a single letter is a much smaller commitment than hiring someone for a whole dispute. You can also decide, once you understand your position, that a limited response is enough. An informed choice to stop is different from feeling you never had a choice. Small claims and mediation for an IP dispute compares the options.

You do not have to turn your first reaction into your final position. Knowing what happened makes the next conversation both firmer and fairer.