Copyright Infringement: What You Need to Know

As authors, we want to focus on the creative aspects of writing, but we shouldn’t ignore the technical details. Copyright infringement of intellectual property is a valid concern both in crafting your story and publishing your novel and can have some disastrous and impactful consequences if an accusation arises.

If you’re the sole author of a story, you have the exclusive right to profit from your creation. Anyone wishing to use it or create other types of works based on it must have your permission. The U.S. Copyright Act of 1970 was enacted to protect creative works from unauthorized use or copyright infringement. With this legislation at your back, there are ways to protect yourself and your work and avoid any copyright infringement entanglements.

What is copyright infringement?

Infringement of copyright is the unauthorized use of another author's copyrighted work. Someone, a company or a website is copying, stealing or imitating your writing, or producing content similar to yours and potentially profiting from the sale or distribution. This includes reproducing, distributing, performing, or displaying a literary work without the permission of the copyright holder. Such actions are a violation of the creator / author’s intellectual property rights.

Copyright infringing activity can take a variety of forms: 

• Photocopying or screen capturing parts of or an entire novel without permission. Also unauthorized posting excerpts of a work without naming the creator (known as attribution).
• Distributing copies of a novel without permission, such as a digital distribution of an ebook (or downloading a book from such a place.)
• Willful infringement / plagiarism, such as making minor changes to a novel and then claiming it as your own. Possibly changing the cover and publishing the book under another author’s name. 
• Selling merchandise that includes copyrighted images, texts or logos
• Derivative works created without the consent of the copyright holder. Examples include sound recordings / audiobooks, motion pictures, and art.

In most cases, copyright infringement is considered a violation of federal law and can lead to criminal penalties under copyright law. To avoid copyright infringement of intellectual property, it is important to obtain permission from the copyright holder before using any published work.

For more information, read A Comprehensive Guide to Book Licensing and Protecting Your Work

Penalties for Copyright Infringement

In a successful copyright infringement lawsuit, payment for actual damages can vary depending on a variety of circumstances. The first goal is to remove the offending content and stop any further proceeds. The next step is to assess the impact of the infringed content on the legal owner, such as a loss of profits. Under copyright law 17 U.S.C. Section 101 et seq. an offender could be liable for statutory damages as high as $150,000. In addition, the violator may be required to pay any attorney’s fees incurred by the injured party as part of the process to protect their work. 

Fair Use

Your fans want to quote your book to promote it. A book blogger wants to use an excerpt from your book as part of their review of your work. These and other examples of using your content without your direct explicit permission are legal under the “Fair Use” legal doctrine. This permits the use of copyrighted material under certain conditions, depending on both the nature of the original work and the nature of the secondary use. 

Use of copyrighted material can be considered fair use if:

• it’s done for nonprofit, educational purposes
• it transforms the original work enough to change its purpose and character
• it uses only a limited portion of the original work
• it does not harm the copyright’s value
• The work has a Creative Commons license, and how someone uses the work complies with its terms.

Fair use often includes instances where copyrighted material is referenced, quoted or sampled within a larger work for the purpose of reporting, parodying or providing criticism or commentary. Unfortunately, the law here is not airtight, but rather established guidelines that courts will use to evaluate individual claims.

What to do if you discover someone infringing on your copyright

Send a Takedown Notice

A formal notification to an infringer of the content that is in copyright infringement needs to be sent to the infringer advising them that you are the owner of the content, and it needs to be taken down immediately. Determine the correct contact information of the site owner and send a notification to the security officer or content manager.

There are two types of notices

Cease and Desist

A cease and desist letter is the broadest of notifications and can be used for more than copyright infringement. It can also cover issues such as trademark infringement and harassment. The purpose of this letter is to warn violators that you are willing to take legal action if they do not immediately remove the copyright infringing materials. Furthermore, this letter aims to advise the infringers that they must stop claiming credit for or using your book or writing without your permission. 

The notice should include:

Your Original Work: Outline in detail the copyrighted work that has been infringed and how the writing or novel is the same or similar to your content. 

The Infringement Method: Identify and explain how the person or website has infringed on your copyrighted material. For example, include screenshots of where your book is for sale on their website. Include urls of where the material is displayed. Be sure to clearly state the title of your book, the infringing book, author and other important details. 

Pro-Tip: Capture the URL using an Internet Archive tool like Wayback Machine, which takes a moment in time capture of a URL so if the owner removes the content, you have proof that it did at one time exist. 

Copyright Protection: Prove your copyright ownership and that it is a valid copyright by providing the registration number received when you registered your novel or writing with the US Copyright Office.

Pro-tip: If you haven’t yet registered your writing, read What Authors Need to Know About Copyrighting A Book

Time to Respond: State clearly a timeframe for the infringement offenders to respond, or ideally, remove the copyrighted content from their site. 

Example of a Cease and Desist Letter

Dear [name]:

It has come to my attention that you have made an unauthorized use of my copyrighted work entitled [name of work] (the "Work") in the preparation of a work derived therefrom. I have reserved all rights in the Work, first published in [date], [and have registered copyright therein]. Your work entitled [name of infringing work] is essentially identical to the Work and clearly used the Work as its basis. [Give a few examples that illustrate direct copying.]

As you neither asked for nor received permission to use the Work as the basis for [name of infringing work] nor to make or distribute copies, including electronic copies, of same, I believe you have willfully infringed my rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein.

I demand that you immediately cease the use and distribution of all infringing works derived from the Work, and all copies, including electronic copies, of same, that you deliver to me, if applicable, all unused, undistributed copies of same, or destroy such copies immediately and that you desist from this or any other infringement of my rights in the future. 

If I have not received an affirmative response from you by [date] indicating that you have fully complied with these requirements, I shall consider taking any and all legal remedies available to rectify this situation.

Very truly yours,

[Your Name and Contact Information]

Important Notice: This is a sample form for illustrative purposes. This sample may not be suitable for your particular circumstances and you should not use this sample, or any part, without the advice of competent legal counsel.

DMCA Notice

Similar to a cease and desist notice a, Digital Millennium Copyright Act (DMCA) notice focuses on the platform that is displaying the copyright infringing content and asks them to remove your book or writing. For example, if you discover your novel has been published under another author’s name on a book selling website, instead of dealing with the unknown author, you can send a DMCA to the hosting website asking them to remove the content.

Pro-tip: Use an online tool like hostingchecker.com to obtain the service providers hosting or domain registrar. 

Note: Many popular social media platforms and reputable online services providers will have their own DMCA forms and tools readily available for writers to submit copyright infringement cases to directly. Before sending your own version, research the sites themselves and make use of their established processes for a fast and efficient response to your request. 

The notice requirements are:

Work Infringed upon: Clearly identify the copyrighted book or writing that has been infringed, including the title and any subtitles or series titles. If multiple works are being infringed, not every instance needs to be identified, but a representative list can be used. 

The Infringing Act: Give the service provider as much information as is required to identify the infringing content with the goal that they can clearly determine which works to remove from their site. The exact URL where the infringing act is taking place, along with screenshots.

Contact Information: Include at least your email contact information for return communications

Good Faith Belief: A statement to notify the service provider that the sender has a good faith belief that the infringing content is not authorized by the copyright owner, its agent of the law.

Statement of Accuracy: A statement that the information of the takedown notice is accurate and under the penalty of perjury, that the notice sender is authorized to act on behalf of the copyright owner. 

Signature: The signature of the owner or the person allowed to act on behalf of the owner. It can be in physical or electronic form.

Example of a DMCA Notice

Subject: Copyright Infringement Notice 

To whom it may concern:

This is a notice pursuant to section 512(c) of the Digital Millennium Copyright Act that your website service is hosting material that infringes my copyright. As a service provider, you are required to “expeditiously remove or disable access to” the infringing material”.

Work(s): [Title(s)]

Location(s): [List all URLs]

File/Excerpt Name: [List all file names, If applicable]

Infringing poster: [Name/profile name/account/any other identifying information if available]

I am the author and the copyright owner of the work(s) listed above. This/these work(s) has/have been posted to your service without my permission.  Note that if your copyright-protected content has been inserted into a larger work, you must identify the specific parts of the work(s) in which you own copyright.

Claimant name: [Your name]

Contact information: [Business address, email, & phone number]

I have a good faith belief that the use of the material that appears on the service is not authorized by myself, the copyright owner, my agent, or by operation of law.

I declare under penalty of perjury, pursuant to the laws of the United States of America, that this notification is true and accurate, and that I am either the copyright owner or I am authorized by the copyright owner, its agent, or by operation of law.

Please contact me at the email listed above indicating your prompt response.

Signed,

[Electronic or physical signature]

Name

Date

Important Notice: This is a sample form for illustrative purposes. This sample may not be suitable for your particular circumstances and you should not use this sample, or any part, without the advice of competent legal counsel.

Benefits of Sending a Copyright Infringement Notification

• Sometimes the notification itself is enough to have the content removed, thus eliminating the need for further litigation. This saves you time, money and stress.
• Can be additional evidence, demonstrating your attempt to end the copyright infringement should the case go to court.
• Can be used in determining the damages awarded to you in a winning case if multiple letters are ignored by the violator.

If sending via paper, use a Certified Mail option with a return receipt to ensure you are notified if and when the letter is delivered. This will also provide you with the name of the person who received the notification, important information you may need for your court case. 

Note: Neither option is a legally enforceable item, but rather a warning of impending legal action. The notice’s purpose is to advise the violator that you are aware of the issue and may proceed with involving the law unless the infringement stops. Ideally, the infringer will take note and stop before you are required to take further action.

Suing the Infringer

Unfortunately, sometimes the threat of taking legal action is not enough. If your work is registered through the US Copyright Office, you can sue in federal court. Another option for copyright infringement claims is a small claim court called the Copyright Claims Board (CCB) which can’t stop the infringement but may award damages.

Avoiding copyright infringement

Clearly state your copyright policy

The copyright notice at the beginning of your book is an essential legal disclaimer to include in your work. By being upfront with your copyright policy, you not only help others understand the parameters of using your book for promotional purposes, it also offers you protection against infringers. Make sure to include contact information so anyone wanting to use your content can reach out to you to ask for permission.

This policy should extend beyond your book to your social media platforms as well.

Watermark your content

One way to help stop the flow of your content without your permission is to add a watermark such as your logo or tag information. This can be easily added to social media and promotional content and helps ensure that anyone reposting has to give you credit. 

Create built-in sharing tools

Find ways to distribute your content with your audience, networking partners or social media outlets by creating opportunities for controlled sharing. Twitter makes this easy with its retweet option. Instagram lets users share as “stories.” TikTok allows users to “stitch” videos, essentially placing your video alongside their content. If you are on these platforms, review their content creation options to select how you want your content protected.

Ask for permission

The best way for you to avoid violating someone else’s copyright infringement rights is to ask the original creator for permission before reposting or using their content. Once you have the good-to-go signal, go a step further and credit the content owner with a tag on social media or a shout out in your content. 

Giving credit where credit is due

It’s never fun to discover your creative endeavors have been copied and used by someone else to make a profit. By using the tools available to help protect your intellectual property, you have a layer of protection for your book you can implement if the unthinkable happens. Copyright registration of your books can make it easier for you to take legal action if it comes to that. Consider membership in a writers association, as many have resources, such as legal advice, that may help counter infringement.  Knowing your rights helps you and others publish in a safe and profitable environment, where everyone gets the credit they deserve.