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What should you do if someone is using your copyrighted work?

What to do if your work is copied by others blog post image.

A commonly asked question is what should I do If you ever come across your work being used by another company or person without your permission. It has become increasingly common, due to ease of access on the internet, that original works are copied by others. Read below to see what can be done in such a case.

What are your options if your work is being copied?

If you find that your work is being copied, you should first identify the type of work it is. Different types of intellectual property (IP) have different protection, which is why you need to be clear on the legal route that needs to be taken. There are two types of IP which are commonly copied, copyrights and trade mark. As these have different methods and modes of protection, your legal actions will differ as a result.

We discuss both type of IP and what to do if your work is being copied as follows:

Copyright Any original creative or intellectual work such as paintings, writing or videos falls under copyright protection. You automatically obtain copyright protection when you create an original piece of work. However, you need to research if your work is indeed protected through copyright by reading the Copyright, Designs and Patents Act 1988.

If your work has been used without permission, you need to investigate what the purpose of the use is. If your work has been used without permission for non-commercial research, private study, teaching for example, it is potentially covered under exceptions to copyrights. In this case, you can politely ask the third party to credit or remove your work if you do not like its use.

If another business or person uses your copyright protected work for sales, promotion or any other commercial purpose, it could be infringement of your copyright. The formal process of stopping them starts with contacting them to ask that they cease the use of your copyright. This is done through a cease and desist letter. If the third party refuses to do so, you can escalate the matter by suing them for infringement. This can be a lengthy process and requires a large amount of evidence from you.

As part of the copyright infringement process, you can seek damages if you suffered financially as a result of use of your copyright. Alternatively, you can seek accounts of profits if the other party had financially benefited from your copyright. An example of this is if someone sold merchandise reproducing a drawing you created.

In cases where you are not the creator of the work, and the work was created for you for e.g. a photography project, you need to acquire copyright of the work by getting the creator to sign over the rights to you.

Please note that an idea cannot be protected as a copyright. It is the expression of the idea that is protected so if you had an idea for a book and you shared it with someone who copied it, then you cannot claim copyright infringement. If someone copied the book you wrote, then it could be considered as copyright infringement.

Trademark – A trade mark is a sign which distinguishes your goods or services from those of your competitors. It can be a name, logo, slogan, shape or even a smell. Companies or people who have not registered their trade mark still have limited protection which is more difficult and costly to enforce the if they registered their trade mark.

Benefits of registering a trade mark:

  • Easier to enforce your trade marks protection
  • Secure exclusivity to use your name or logo for specific goods or services
  • Have the ability to license your trade mark

If you find that another company or person is using your trade mark without permission, you will follow the same process as outlined for copyright above. You contact the party to ask them to stop the use of your mark. This is done through a cease and desist letter. If they do not comply, the matter can be escalated in court through a trade mark infringement case.

You can claim damages or accounts of profits if they financially benefited from your trademark. Damages are claimed if you suffered a loss as a result of the trade mark infringement while accounts of profit are used to claim part of the profits made as a result of use of your trade mark.

As stated above if you do not have a trade mark registration, it is costly and time consuming to enforce your unregistered trade mark. You will have to prove that you have gained goodwill in the market through use, the use of your mark constitutes misrepresentation and that your bran has suffered damage.

This post gives you a brief overview of the process that you have to follow, but each case is different which is why you should consult with an IP solicitor. We can help you in such circumstances so contact us on trademark@freemanharris.co.uk or call 020 7791 9050.

Attention! Changes to Copyright Law Coming Into Practice from July 2016

Changes to copyright law for artistic work

Generally, a copyright protects musical, dramatic, literary and artistic works. Copyright protection is given to these types of works for a period of 70 years after the death of their creator. This rule comes with an exception!

According to section 52 CDPA, the current period of protection for artistic works (excluding films) which have been industrially manufactured (i.e. works of which more than 50 copies were made) and marketed for sale is limited to 25 years. This means that anyone can make copies of such works without infringing copyright once the period of 25 years from when the articles were first marketed has expired.

However, following the Case C-169/08 Flos v Semeraro, the UK government considered that section 52 was not compatible with the EU Copyright Term Directive and passed legislation to repeal that section. This means that the period of copyright protection for mass-produced artistic works will be extended to the lifetime of the creator plus 70 years.

Originally this repeal was meant to have a transitional period of 5 years, coming into effect in April 2020. However, the government conducted a new consultation late 2015 and concluded that this period was excessive.

It has therefore been decided that instead, the repeal will now occur on 28 July 2016, with the transition period ending on 28 January 2017.

What does this mean for businesses, organisations and individuals?

Well, from 28 July 2016, no new copies of affected artistic works may be made or imported unless:

  1. they were contracted before the publication of the consultation document at 16.30 on 28 October 2015;
  2. permission has been granted by the rights holder; or
  3. an exception to copyright applies under the CDPA 1988.

And from 28 January 2017, no replicas or unauthorised copies created in reliance on s.52 should be dealt with. By this date, unless an exception to copyright under the CDPA 1988 applies, all of these items must be depleted (sold or destroyed) or must have received authorisation by the rights holders.

Furthermore, it has to be noted by those affected businesses, organisations and individuals that the change has retrospective effect and industrially exploited artistic works whose copyright protection had expired under the 25 year rule will have copyright protection ‘restored’.

To explain what is meant by “restored”, here is an example: an artistic work was created by person “A” in 1985. More than 50 copies were manufactured and sold by “A” in that same year. “A” died in 2015.

Under Section 52, this artistic work would have had copyright protection until 2010. But following the change in law, that same work would be protected until 2085.

What to do now?

Following the change in the law, anybody who have copied artistic works should assess if any changes to their business models and product ranges have to be made, especially if they were relying on section 52. Some minor or substantial changes might have to be implemented in order to avoid being in a situation of copyright infringement.

To assist affected individuals, organisations and businesses, the IPO has prepared Guidance, which is very useful to obtain general information on the repeal of section 52 and its consequences. However, it does not provide legal advice which means that independent legal advice should be sought, if required.

Should you wish more information on copyright or any other IP protection in the UK or the European Union, the TrademarkHub team can assist you and your business with protecting, exploiting and enforcing your intellectual property rights. Please do not hesitate to get in touch.