Copyright Infringement and Me
Nov. 3rd, 2010 @ 11:14 pm
(here via nihilistic_kid
Do you have any friend who are lawyers who'd be willing to do a little work for you on a contingency basis? The amount you'd be likely to get in damages if this went to trial is probably small, but it'd be a slam dunk case, and might be worth the satisfaction just to seem them fold.
(I'm not sure if it's possible to adjudicate copyright claims in small claims court, but that would surely be the best route, since you wouldn't need a lawyer at all.)
Unknown. Looking into it. But thanks !
I don't personally do IP law but I know a lot of lawyers who do. If you like I'd be happy to ask around for recommendations for lawyers in your area who could assist you with this.
I'm going on the assumption that you didn't actually register the copyright in your article. If you had (and you have up to 5 years after initial publication to do so, but must do so before an infringement occurs), you'd be entitled to statutory damages of between $750 and $30,000, depending on circumstances. Without a registration, you have a more difficult fight, but still a potentially valid claim.
(Note: I am not an IP lawyer, but a publishing contracts and copyrights professional. The above is general information only, and not intended as legal advice.)
Is registration actually necessary? My (not-a-lawyer) understanding of the Berne Convention is that copyright is assumed to be inherent once a written work is created: registration might make proving authorship a smidge easier, but that's about it.
(And of course, the fact that the idiot admitted
to lifting the article hopefully makes the question moot.)
Registration is not necessary for ownership of copyright. The author owns what they've written from the moment it is written down. However, registration is necessary to bring a suit in the U.S., since it clearly proves ownership of the work. You can't ask for statutory damages without registration, and statutory damages are often/usually higher than the actual damages in a case like this one.
|Date:||November 4th, 2010 07:05 pm (UTC)|| |
Lawyers won't take it unless they will get a hefty chunk of change from it-- their take is usually something like a quarter to half of whatever you get, depending on whatever you work out. Or you could pay them on a per-hour basis, but that's prohibitive.
From the Copyright Code (Title 17):
§ 505. Remedies for infringement: Costs and attorney's fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
That's no guarantee, but this seems like a pretty clear-cut case, with the editor admitting guilt ("my bad").
|Date:||November 4th, 2010 07:50 pm (UTC)|| |
I'm just passing on what they told me when I was trying to find an attorney to take my case last year. You know, attorneys have to eat, too, and all that. They all agreed that my case was clear cut and there seemed no doubt that my work had been stolen, but still I got the comments noted above.
|Date:||November 5th, 2010 03:34 am (UTC)|| |
I ran into a similar issue 10 years ago. A magazine had published a short article I had submitted, without prior notification it was accepted, and without prior payment.
In my case, I was ignorant of standard industry practice, and had no leg to stand on, but I did do some research.
Since your original publication was 5 years ago, you presumably did not register the article with the U.S. Copyright Office within the required period, so the damages you can be awarded will be limited. But if you can produce clear evidence of the infringement (and it sounds like you already have it), you should have no trouble collecting damages.
Contact a copyright attorney. An initial phone consultation will probably be free. If the potential award isn't worth the attorney's time, go for the maximum small claim. It will cost the magazine 10 times more than they would likely have needed to pay you if they bought the article legit, just to defend the claim, regardless of whether they win or lose. Heck, they'll spend that on transportation alone, if the court proceedings are on your home turf.
Check out magazines that could conceivably have purchased the article. Find out what they pay for similar articles. Find out whether they would pay the same for an article that has already appeared in another magazine.
That's your minimum damages. Since they modified the article without your permission, and in so doing introduced errors which could conceivably have damaged your reputation, you may be able to claim additional damages. If you can, get a copy of the print edition that your plagiarized article appeared in. (Any good reference librarian can help you there.) No judge would rule against you.
Best of luck. You've got thousands of writers pulling for you.
Dunno if anyone's said it, but it might be worth getting in touch with a local law school to see if their grads do free/cheap legal advice or work "practice" cases. Our local law school does so, and I imagine they aren't unique that way.
I got here via AskMoxie; I am APPALLED on your behalf.
|Date:||November 4th, 2010 12:39 pm (UTC)|| |
This would never get to trial. This is a slam dunk as none of the usual defenses are available to the magazine. But the cost of the litigation might be more than what could be recovered from the magazine.
That's why I suggested either looking for a lawyer willing to do it for shits and giggles, or doing it in small claims court. The goal here isn't to get rich, the goal is to teach this idiot a lesson.
|Date:||November 4th, 2010 06:34 pm (UTC)|| |
Unfortunately since copyright infringement is a federal claim, it would be difficult to bring in small claims court and would need to be brought in federal court, which would up the costs significantly. Perhaps a more inexpensive and creative method of getting the bastards back would be more useful?
|Date:||November 4th, 2010 06:53 pm (UTC)|| |
Shut them down
You probably can't get monetary damage in this case but unless the original website has an extremely liberal republication license you CAN force them to immediate cease and desist all further publication. Destroy all unsold back issues, or at least rip out the pages. Take the story down from the website. Prove it at their expense. They didn't just rip off your story, they edited it and then published it as your work. Maybe you disagreed with the edits - you don't know since they never gave you a chance to approve them. And they can't just have somebody else put their name on it since it's a derived work of yours and emphatically not in the public domain.
If nothing else you can make sure that the idiot has a long talk with the company's lawyers and doesn't pull this crap in the future. Under the Bern convention EVERYTHING creative (which is extremely broad) is "born coryrighted" the instant it is put down in tangible form -- which means the instant you hit the 'save' button in your editor, much less publish it on the web. It's damn hard to put something into the public domain - you have to do it explicitly and some lawyers - LAWYERS - aren't even sure it can be done anymore. She's either grossly uninformed or is used to making empty threats against the people she's ripping off and needs to be stopped in either case.
I had a major Daily that claims to cover the World by interNet steal one of my articles and slap someone else's name on it. They rearranged the order of a few sentences slightly.
They assured me that as experts on the First Amendment I had no leg to stand on and it was perfectly legal.
My Guild's lawyers assured me I did, in fact, have a case, but that it would be expensive to win and yield so little as to be a waste of time.
It's the unfortunate reality of the modern age.
|Date:||November 4th, 2010 09:44 pm (UTC)|| |
Federal courts have exclusive jurisdiction over federal copyright claims, although some states have their own common-law copyright laws.
You can sue them for copyright infringement. Even if you don't have a federal copyright, there is an implicit common law copyright. They basically admitted to you that they stole it. Since they're a major publication, I'd ask for punitive damages too. I'm not sure where you live, but I know Chicago has pro bono groups for this kind of stuff.
I know a lot about copyright law - it was my primary focus in law school. As a writer, this is outrageous to me. Email me if you want to discuss it more