By Alicia Karen Elkins
If you publish much work, chances are good that your work has appeared online without your permission. Recouping your losses is an aggravating and lengthy procedure, but it can be executed successfully. Here is the procedure for getting your fair market value from sites that infringe upon your copyright or illegally use your intellectual property.
The first step in protecting yourself from media pirates is to post a notice on the first page of your web site that states none of your work may be used without your written permission and you will prosecute media pirates to the fullest extent of the law.
The second step is to run your name through search engines on a regular basis. Since I have had work illegally used, and even syndicated to 72 outlets in one instance, 63 times in less than a year, I have started running search engine queries on myself at least once each month. Carefully review each listing and make notes about any that are not markets to which you submitted. You can also use the title of your work, but that can become a time consuming task if you have many pieces to check.
Follow each unrecognized link to the site and check out why they have a link to your name or work. You need to write down the following:
The full URL for the page with your work The owner’s e-mail address The full name and address of the owner of the site The name of the submitter, if shown The email address of the submitter, if shown The date of the post, if shown, or the issue date and number You can often find a website owner’s contact information by typing the URL into this site: http://dns411.com/ Make a print out of the web page containing your work and the home page for the site. Label a large envelope with “copyright infringement” and place all records about the case inside. Store in a safe place. Be sure to include the amount of time you spend on the case, so keep a log, and any trips you make, such as to the county courthouse. Include costs for making copies, telephone calls, and so forth. If you get a judgment against the media pirate, you are entitled to recoup all expenses incurred to file the claim, appear in court, and collect the amount awarded to you. Keep detailed records and get a receipt for everything.
The next step is to notify the site that they are using your work illegally and demand payment. State the amount owed (estimate what you think the publication of your piece is worth) and the length of time they may use your work once they compensate you. Save a copy of all correspondence to the “sent” folder. Print out a hard copy for the case envelope. You will need to prove that you made an honest effort to contact the owner of the site. Also, send an e-mail to the submitter. Tell them that you own the property, were not contacted for permission to use it, are making a demand for payment, and that they are never to submit any of your work to any other markets.
Allow a reasonable amount of time for a reply. If the owner replies, restate your demand for payment. They will likely tell you that they did not know it was illegal to use your work or that they are doing you a favor by supplying exposure for you and your work. Be strong and do not allow them to use your work illegally. The law is on your side. Demand payment.
If the owner does not respond, send your demand for payment again. Wait another few days and send a notice that they have 72 hours to respond or you will take appropriate legal action.
After the final 72 hours, contact the internet service provider (ISP) where their site is hosted. Locate the home site for the ISP and look for a link about copyrights. If you do not see such a link, contact the ISP through their “help” link and ask for contact information for their copyright infringement agent. They will provide you with instructions for filing a complaint. Another way to do this is to check the “directory of copyright agents” for the ISP’s agent listing at the U. S. Copyright Office web site at: http://lcweb.loc.gov/copyright.
You will have to sign a statement and mail or fax it to the agent. The statement must contain a description of the work, the URL where it is illegally used, a statement that the work does belong to you and nobody else has the authority to publish the work, and a statement that you did not authorize use of the work by the site. You must include complete contact information, including your mailing address and telephone number. Ask the ISP to supply you with the full name and address of the owner of the site if you did not find it on the site. They will probably tell you that state and federal laws prohibit the release of this information without a court order and will give you an address where the court order should be sent. You will need this letter to take to court.
Next, take a printout of the privacy act statement from the ISP and your copies of correspondence to a local court clerk and ask for an appointment to see the judge. Any court that is willing to issue a court order for release of information will work, but it is easiest to get it from a civil or small claims court. This can be accomplished in the judge’s chambers without having a hearing. Send a copy of the order to the ISP. They will then send you the address.
When you get the address, go online and do a search of the city and state. You need to find the county name. Next search for the county small claims court. Look for their contact information and read all information about filing a small claim, specifically looking at how to file your claim. Many courts will allow you to file the claim by mail and to have the person served through certified mail. If the information is not given, call the court clerk and ask if you can file my mail. Follow their procedures. An alternate, but more costly method, is to call directory assistance for the city and ask for the county small claims court. Then, call the court and ask about filing by mail.
File your claim. Include an itemized list of all your expenses, including your time figured at an hourly rate as stated in Writer’s Market or any other writer’s reference manual. Do not ask for a lower rate. Include the following statements in your itemization: “Actual costs to appear in court. Receipts will be provided.” If you are more than 100 miles from the court, add this statement: “Cost of travel required for court appearance.” Count your time lost from productive work or any wages lost due to the travel and court appearance.
Be thorough, but observe the court’s rules for the maximum amount that can be filed as a small claim. If the amount is more than allowed in small claims court, you will have to file a civil suit for fraudulent use and damages. File the claim and request to have the defendant served through certified mail by the court. Once you are notified of the court date, make your travel arrangements. Take any proof of copyright to the hearing, magazines, books, and so forth.
Getting the judgment is much easier than collecting it, especially with the mom and pop sites that believe they have done nothing wrong in posting your work on their personal site. Often they will tell you that they will never pay. If they do not readily agree to pay in the courtroom, take your copy of the order straight to the county’s title office and register a lien against all property owned by the person. This can mean anything from a lien on their vehicle or boat to a lien against their home. They cannot legally sell it or trade it without paying you first.
As a last resort, you can have their wages garnished from any places of employment and even have the IRS collect the debt for you by furnishing them with a copy of the court order. Their refund will come to you instead of them. They will simply get a receipt for payment.
I did not say that collecting the fair market value for your work was an easy task. But it can be successfully accomplished if you have the tenacity to pursue it. There is an epidemic of media piracy due to the small Internet sites with owners that are not familiar with copyright laws. They wrongly assume that they can use anything on their own personal sites. It turns marketable work into stolen property.
Consider the costs of illegal use of my work 63 times in the past year. At $10 per use, just an act of recognizing the author, I have lost $630. At $25 per use, a token amount that anybody should be able to afford if they wish to own a web site for public viewing, I have lost $1,575 – enough to pay my vehicle insurance for a year with money remaining for a set of tires for my utility trailer. At $50 per use, I have lost $3,150 – enough to pay half of my annual mortgage payments. At $100 per use, I have lost $6,300 – enough to pay off my home mortgage in 4 years. It does not take long to suffer extensive losses.
The only way to stop media piracy is to pursue each incident through court. As long as you have fully documented the incident and all of your costs to take it to court, you will win your case and receive compensation for the trouble. Often the media pirate will pay the claim before court to get the case dropped. If enough writers start prosecuting cases, word will soon circulate that media piracy is a costly adventure. Only then will writers be able to publish their work without losing it to people that “really liked it.” Just follow this procedure and you will receive just and fair compensation for the illegal use of your property.
This article is available for free distribution/reprint as a public service from the author.
I grant free reprint rights of this article to anybody wishing to spread the word about media pirates. Let’s eradicate media piracy!
Alicia Karen Elkins has been in print for a decade. She is currently working to complete her MA in Creative Writing, a staff reviewer for several publications, the 2003 Ford Conservation Fellow through Earthwatch, and has multiple works being published this year, including a poetry workbook. She is also a licensed private investigator.
source June 11, 2003: