Imitation isn’t always the sincerest form of flattery, sometimes it’s just plain old intellectual property theft or a breach of copyright. Traditionally, the UK has taken a somewhat limp view on IP and copyright breach, based on numerous misconceptions and previous cases. But there is plenty you can do to make sure you have a very strong intellectual property package that offers you, your work and your content real-world protection against such breaches.
The first thing to understand, is exactly what your rights include. This comes down to three basic principles:
- Copies of your work can’t be made without permission
- New works based on yours are considered ‘derived’ and therefore still yours
- Your work cannot be sold, transferred, lent or rented without permission or agreed terms
And you don’t need a little © either. Your work and unique content receives protection the moment you create it. No need to mail it to yourself, electronically or otherwise (known as poor man’s copyright), and no registration required (there is no official register!). In the same way that if you break it, you bought it - if you wrote it, you own it!
Before we get to what you can do in the event of a copyright breach and the precautions you can take against it, we should probably go over what is, and what isn’t covered by copyright.
First off, you can’t copyright an idea. If you’ve invented something, or come up with a particular mechanism, application or design, then you can apply for a patent or register it as a trademark, but you never own the basic idea or concept.
The same goes believe it or not for the name or title of the work. Again, this doesn’t apply to other laws as mentioned above, but generally, there’s no reason why unrelated works cannot share a title, as long as the content itself has not been copied or adapted.
Which also means though, you can’t just change an existing work and call it your own. Any kind of adaptation, minimal copying (10% or less for instance), and so forth, will count as an infringement. And don’t expect to get off just because you’re not making any money out of it, you will still have breached copyright, and will still be liable should the owner wish to take things further.
So, what can you do if you have had your copyright breached, or your IP stolen, adapted and otherwise used without your permission? Your first action should be to contact the party involved and point out that an infringement has taken place. People’s understanding of copyright can be minimal, confused or just downright wrong, and they may not know they’re in breach. Try to be level-headed about what has happened, especially where it’s not deliberate. There’s little point in being heavy-handed with an ammateur blogger who has copied an image for instance. Even with a professional who may be making money from the infringement, a simple cease and desist should be your first step. At the same time, you can also suggest reasonable costs and terms for the continued use of your property. After all, it isn’t just intellectual theft, it’s also an opportunity! If neither of these things are complied with, then that’s when you need to start thinking about taking things further. But in most cases of civil IP theft and copyright breach, legal proceedings are best avoided where at all possible. They take time and money, and although things are getting better, rewards are still relatively small other than the initial recovery of costs in most cases. That said, the threat of legal proceedings and the involvement of a good IP solicitor and specialist usually will get a quick response, and is how the majority of cases are settled outside of the courtroom.
In such meetings, it’s relatively easy to use the same arguments we have raised here to defend infringements. Most violators are relying on the difficulties of time and cost for things not to be taken further. Its also not uncommon for the threat of counter-claims to be made. This is their legal representation at work rather than anything else. If the infringement is real, then stick to your guns in the full knowledge that the law is on your side.
But being smarter with your creative work can also be beneficial, and the more thought and reinforcement you put into your IP, the more clout you’ll have in or out of the courtroom. So for instance, whilst it is not possible to copyright an idea, all the individual specific elements can be treated as separate entities. So graphics, images, music, text, catchphrases, likenesses, formats and layouts can all be treated as individual infringements and in some cases even registered as trademarks.
A recent example for instance would be The Great British Bake Off. Despite being a BBC programme in essence, it is the production company Love Productions who own the rights and registered trademarks of the show. When the show began, it’s success wasn’t guaranteed and the format was considered a little quaint and middle-England. Five years later, it is reaching audiences across Europe, and it is Love Productions rather than the BBC who are reaping the real rewards with every new contract.
And think about George Lucas, who when faced with a floundering career as a director in the 70’s, managed to convince 20th Century Fox that the ‘insignificant’ merchandise and sequel rights should remain with him instead of taking a pay rise for directing his ‘likely to bomb’ project Star Wars. These little parts of the whole package were suddenly worth a lot more when Star Wars went on to be a major hit. In fact, when adjusted for inflation, Star Wars is the second highest grossing movie of all time! Since 1977, Star Wars toys have generated $13 billion in revenue and continue to produce about $3 billion a year. After the Disney buyout, Lucas’s net worth is estimated to be $7.3 billion. That’s more than Hollywood high-rollers Spielberg and Oprah combined! The moral here is that not only is knowing the real value of your work incredibly important, (especially when working out the extent of a copyright infringement for instance), but also that you should never give up the rights to anything of yours too easily!