Hello,
My name is Walt and I am one of the co-founders of www.StogieReview.com. The website is geared towards written and video cigar reviews and covers a fairly large number of cigars.
Not too long ago I ran into an issue where one of my regular readers informed me that while researching a cigar I reviewed, he found my written work placed on a manufacturers website. The content was taken word for word and also included about 5 images that I personally shot for the review. The manufacturer gave no credit to either myself or my website for the text or pictures.
I immediately contacted the website admin via contact info found on their yahoo store and asked that they either give credit to me for both the written work and pictures, along with a link back to the original article, or kindly remove it.
The review was taken down in a few days and everything was resolved. My question is, what could I have done had the website admin ignored my request?
This was the first time I ran into a issue like this, aside from content scrapers, and it bothered me that it was used as a sales tool. Would a cease and disist template be advisable for this type of situation or should I look to another avenue for results?
As I mentioned, the particular situation above was resolved without issue but I would like to have something in place to quickly resolve any issue like this in the future.
Thank you for your time
-Walt
This is what I would do, but
This is what I would do, but you should certainly contact a lawyer if you are dead serious.
First, you should take images, screenshots, and all other relevant proof that they are copying your work.
Next, you would like to kindly ask that the content be taken down. You have to consider that maybe there was a lazy employee at the company that really screwed you and the company over. Or many other scenarios.
If you can't find any contact information, you should peform a WHOIS on the domain to find more relevant information.
Then, if you are able to get in contact and resolve the issue, then you are done. But if they do otherwise, it is time to take more serious action. First, I would notify the webhost (usually can be found through the WHOIS). Many webhosts have a process for filing these types of claims, and some are more complicated than the others.
Also, if they are using any advertising service, you should notify the advertiser (e.g. Google AdSense) that they are doing this. Perhaps you could cut off their revenue stream, and this will certainly have an impact.
Now, if you have gotten to this point, it might really be time to consider a lawyer.
If you wish to send a cease and desist, that is a serious legal action. It is not something you just do. If you are in the wrong, they could sue you.
Hopefully it won't get to this point, but if it does... it could be very serious.
You must consider if you can get any retribution, but it is almost never worth it unless you are a big timer with money to burn. Our legal system is just screwed like that.
The iffy topic is if you should try to take this public and potentially harm the company for what they have done. They deserve it, sure, but the company might have grounds to sue you for defamation. Again, our legal system is anything but logical. These are all things to consider.
I've been in the same scenario; sites from China steal my content all the time. I can't do anything about it.
http://www.someuseless.info/398/what-you-can-do-when-your-content-gets-stolen/
Also, an excellent cease and desist template is available here:
http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/contract/cease.htm
This also happened to DoshDosh
I had a similar thing happen a couple of weeks ago
A large company took some photos of two products I'd reviewed earlier this year and distributed them in a digital press kit.
When I found out, I took screen shots of their press kit. I also took screen shots of my photos with the exif data (including the other shots that I didn't publish).
Then I sent them a note asking them how this happened and that they are not allowed to take my copyrighted material (not now, not in the future).
Surprisingly they emailed back the next day with an explanation of the error and assured me that was the only place they showed up.
I consulted a lawyer and discussed my options and we agreed upon a what fee I should charge them. I decided not to ask for punitive damages as I hope this could just be settled quickly and quietly. The amount for the photos was the top end of what this sort of license usually costs. I am willing to accept them at their word that it's an honest mistake (though if they realized it before I contacted them, they should have said something instead of just sending me the press kit).
She drafted a letter, I approved it and we sent it off.
The letter made it very clear that as an independent reviewer my photos cannot show up on their website or in their press materials as it creates a relationship (them giving me money) that I cannot have. (The advertising I accept on my website is never directly from manufacturers, just stores that sell all sorts of stuff so that there's no gain for me overall from positive reviews.)
The money (when it arrives) will go towards paying my lawyer for her time and the rest donated to a 501(c)3 I work with (so that I do not profit from this incident, even inadvertently).
Theory and Reality
For the purpose of this answer, I'm going to separate my response into what is theoretically possible and what is likely in a practical sense.
Theory
If the site had refused your request, you then would have had to weigh your option. If removal of the work was all you were interested in, you could have filed a DMCA notice with the host, provided they were hosted within the U.S. or a country with similar laws, and had the works removed that way.
If you wanted to do more, you could have done as Cybele did and draft a letter demanding that the company pay you a fair licensing fee for use of your content.
If that, in turn, had failed, you could have then gotten an attorney and gone after them in court, possibly winning many hundreds of thousands in damages. In fact, a recent case involving a photographer found the plaintiff awarded 12 million in damages for photographs used to sell houses.
Reality
The reality is a bit more grim. Since you have to register a work with the U.S. Copyright Office before you can sue in Federal court, your options are severely limited if you did not register already. In fact, if you did not register prior to the infringement, you would not be eligible for statutory damages and would only be eligible to claim the greatest of what they gained or you lost. In both cases the result would be almost nothing.
Though you might be able to sue for a good amount if they removed any information identifying the other (or other "copyright management information" as it is called) for the most part suing would be impractical.
Likewise, any company that did not respond to a polite letter demanding removal is not likely to respond to a less than nice letter demanding payment. Though if you sent it through an attorney, once again as Cybele did, it might have more weight, an uncooperative company rarely changes its tune halfway.
The final option, the DMCA notice to the host, remains valid though and you could have done that. They could have filed a counter-notice, though that is unlikely since it would open them up to a legal case even if you have not registered the work (it involves swearing upon penalty of perjury among other things).
Conclusion
In the end, the DMCA notice would have likely been your next step and it is something I would have gladly helped with. It is a simple matter and I have the stock letters on my site.
From there, you would have been able to see how they react and if they opened up other challenges.
You could have also tried Cybele's route instead of demanding removal, but that is sometimes rather risky as many do not respond well to demands for money.
In the end, I think you handled it very well. Congrats on a case resolved!
Jonathan Bailey - plagiarismtoday.com
Thanks for the advice
Jason, Cybele, and Jonathan
Thank you for all of the advice. Ultimately the last thing I want to do is to get a lawyer involved and I was very happy that in my situation it didn't result in that.
If this type of situation ever occurs again, I'm glad that I have an idea of which course of action to take.
Thanks once again for your time and advice.
-Walt
Just to clarify
Waltw - in my case the damage was done, the CDs with the digital images had been distributed at a trade show, so it was doubtful that they could be recalled in the same way that removing images from a website was a remedy. That's why I ended up going with just charging them, it would be too difficult for them to remove the photos.
When my photos show up on eBay auctions, I just have the auction canceled by eBay.
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