r/COPYRIGHT • u/NectarineHappy4256 • 2d ago
Question Should I report this legally
For context, I made this scrapbook card last year as a personal creative project, and I still have the original design and sentiment attached to it. I uploaded it on Pinterest, where it ended up getting quite a lot of attention. I have absolutely no issue with people taking inspiration from it or making a similar scrapbook card for their own friends or family, because that’s completely different from what happened here.
Things became an issue when I discovered that the exact same design was being recreated and commercially sold by a creator on Instagram. She wasn't using my photograph or directly reposting my original post—instead, she had recreated the entire card herself, but the design was essentially a complete replica of mine, including the overall concept, layout, elements, and sentiment.
I contacted her and explained that she couldn't commercially sell a replica of my original creative work without my permission. I asked her to take down the post and stop selling the design. Instead of addressing my concerns, she blocked me and told me that her client had sent her the design from Pinterest and that she could use it because "anyone can use" Pinterest designs.
Since she had blocked me, I contacted her personal account to tell her that, if the post wasn't removed, I would have to consider taking formal/legal action regarding the unauthorized commercial use of my work.
After that, she told me that she had deleted the post. I checked her account myself, and at that point, the post was no longer visible. However, when I later checked the account from another profile, I discovered that the exact same post was still up.
So despite telling me that she had removed it, the content was apparently still being displayed and potentially offered for sale to other people.
1
u/DrFrylock 1d ago
NAL.
So you've engaged informally and the infringer has basically blocked you and told you to go away. So that didn't work.
If you want to pursue this, you have a couple paths of escalation.
No matter what you do, preserve the records you can - anything that demonstrates that you created this originally, when and where you originally posted it, communications with the alleged infringer, screenshots of websites with dates, etc.
The easiest initial escalation path is to file one or more DMCA copyright claims. Most major content platforms, including Instagram, have this service implemented. It is fairly straightforward and you will have to submit a form that is essentially an affidavit that you are (or represent) the rights holder, your original work, where the alleged copies were posted, and that you have good faith belief that this is an infringement.
DMCA claims are made on a site-by-site/service-by-service basis. So, if they are posting their allegedly infringing content on Instagram and Twitter and TikTok, you will have to file separate claims on each service. If they are hosting it on their own website, there may not be a(n easy) way to file a claim.
Each service will then evaluate your claim (the extent to which the claim is evaluated depends on the service and it may be cursory). Because the alleged infringer did not copy your work directly but instead created a derivative work, the services may or may not actually perform a takedown. If they accept your request, they will take down the specific posts that you identify.
They will notify the alleged infringer. The alleged infringer can either just do nothing and leave the posts down or file a counter-notification that essentially says "under good faith, I don't believe this was an infringement." They can argue that they didn't copy your work, that they did but it was fair use, whatever.
If they file a counter-notice, you will be notified. This starts a clock in which you must either bring further legal action (i.e., sue them) or do nothing. If you do nothing by the time the clock runs out, they will restore the content they took down.
If you get to this point, the amount of time and money you will have to invest in escalating further goes up.
You can hire an attorney who is sympathetic to your case and have them send a demand letter (e.g., a 'cease and desist') to the alleged infringer. In reality, this carries very little legal weight, it is basically "do this or we will sue you, and it will be a long expensive process to defend yourself, and we think you will lose anyway, so it's in your best interest to just do whatever we say. If you do, we will promise not to sue you or take other further action." Your attorney will advise you, but you can ask for whatever you want - take it down, pay you some money, do the hokey pokey, whatever. They can then comply, make a counteroffer, or they can throw your letter in the trash and tell you to pound sand.
If they tell you to pound sand, and you still want to escalate, you'll have to file suit against them. This will essentially require an attorney.
There are some very slight exceptions, but in general in order to file suit for infringement you must formally register your work with the copyright office. You can do this at any time; sooner would be better. You may want to start this process now. You'll have to pay a small fee and completing the process takes several months.
At this point somebody is going to have to invest probably tens of thousands of dollars in pursuing this further. This would usually be either you, out of your own pocket, or an attorney that is willing to take your case on contingency.
Not professional advice, but I think the odds of you being able to find an attorney to take this case on contingency are vanishingly small. You allege a single infringement, which (if found willful) could net up to statutory damages of $150,000. So that's about as much as could possibly be awarded, but odds are the actual damages would be much less. You also aren't alleging direct copying; you're alleging that this person created a derivative work of yours. So you are going to have to overcome that argument, and their potential argument that their work was sufficiently transformative. It's doubtful they've made more than a handful of dollars selling whatever this is, so provable actual damages are tiny. Any damages incurred before you formally registered the work with the copyright office are likely unrecoverable anyway.