March 7, 2016
Legal  |  10 min read

5 Steps for Protecting Your Most Valuable Content

By now, we’ve all heard about the magic that is content marketing. I, personally, have seen businesses go from humble beginnings to massive empires on the back of creating content. Content marketing is how you build not only a business but also a raging (and raving) fanbase. No doubt you've put a lot of hours into crafting your content. 

While there is a great deal of discussion among small businesses about why content marketing is the secret sauce, how to do it, and how to do it well, there is little discussion on how to protect all of that glorious intellectual property you just created. 

Content = Intellectual property

If you’ve been creating content for any significant length of time, then you’ve probably had the experience of seeing your stolen content on some other company's website. It happens, and it happens often. In fact, over $200 billion in intellectual property is stolen in the U.S. every year. My point? That content you are creating everyday is valuable intellectual property. You need to protect it. Here's how.

1. Register your content with the U.S. Copyright Office

First, gather up all of the content you have created, and register it! Today, almost every business has an online presence with a website that contains original content including articles, videos, audio recordings, original photography, e-books, e-courses, and other digital media. Copyright gives the author of original creative works the exclusive right to display, perform, make copies of, distribute, and prepare derivative works. Truthfully, you don’t have to register or publish your work to own the copyright in it. Common law copyright protection attaches from the moment it is fixed in a tangible form. You do not have to publish it first, and you don’t have to notify anyone that you are claiming ownership of the copyright of that work. But if you don’t register it, you end up without much recourse if someone steals it.  

When you federally register your copyright, you obtain the following advantages over common law copyright:

  1. You create an official government record of your creation and ownership of the work.
  2. You get to bring a Federal lawsuit. Registration gives you the right to file a claim of copyright infringement in Federal court.
  3. You get to seek statutory damages and attorney’s fees in that lawsuit (i.e., mo’ money.)

There are savvy copyright infringers out there, some of whom have an entire business plan based on scooping up other people’s content and using it to drive ad sales and page views on the Internet. If you don’t have your copyright registered in your work, then to them there is really no risk. They know that the chances of them getting sued for statutory damages are gone if you don’t protect your work. So register your creative work with the U.S. Copyright Office.

2. Protect your brand by registering the trademark for your brand elements

When you choose the name of your business, your blog, or your cool video series, you’re choosing a brand that you will invest time and money in, hoping to build it up so that it becomes recognizable to your market. Trademark law gives you legal rights to the unique words, names, symbols, and sounds used to identify and distinguish the goods and services associated with your business in the marketplace.

Just like copyright, you have common law trademark rights as soon as you begin to use the trademark in business, attaching it to the goods or services you’re selling, as long as the trademark 
is not confusingly similar to, or diluting 
the value of, someone else’s trademark. However, similar to copyright, there are various benefits to federal registration of your trademarks that are not available under common law.

  • Federal trademark registration solidifies your rights to the mark nationally. Common law trademark rights only give you rights to the mark in the geographic areas where you are actually selling products or services. Without federal registration, you may not have any claims of infringement if a competitor located in another state starts using the trademark.
  • Federal trademark registration creates a public record of your ownership of the mark and puts others on notice of your ownership of the mark.
  • Federal trademark registration gives you the ability to file a lawsuit for trademark infringement in federal court and to seek higher damages from the infringer, which serves as a big deterrent to would-be infringers.
  • Federal registration of your trademarks is an asset that can be sold, licensed, and otherwise used to make deals. Securing the trademarks associated with your brand will increase your company’s value when you want to obtain outside capital or sell your business. It also gives you the ability to license the use of your content, proprietary methods, brand name, and products to others, which expands the reach of your work and makes you more cash. (You could technically do it without the trademark registered, but that’s a very, very bad idea).

The process of registering your Trademark is a lot more complicated than copyright registration. Therefore, we recommend hiring a lawyer to help you navigate the process. The trademark application looks fairly straightforward, but it isn’t. A huge percentage of trademark applications wind up being abandoned because a business owner tried to do it themselves, and then when it got complicated they didn’t know what to do next.  Bottom line: It’s worth it to have an experienced lawyer deal with it.

3. Have proper Terms and Conditions on your site

Terms and Conditions (also known on the streets as Terms of Use or Terms of Service) serve as the contract between your business and its website visitors, subscribers, and customers who make purchases from your website. Terms and Conditions can cover a wide variety of topics; some examples include your right to use information posted by users on your site, whether and how your intellectual property posted on the site may be used by web visitors, payment terms, warranties and liabilities waived, account management, site security, jurisdiction for any lawsuits arising from their use of your site, and so on.

One of the most important clauses that should be in your Terms and Conditions is limitations on how your intellectual property may be used. This clause provides specific parameters on how the intellectual property you own may be used by website visitors. 

4. Police your creative content marketing assets

I know that “policing your work” sounds like you have to be on patrol and on the defense, but really, it just means that you have to keep an eye out for infringement. Luckily, there are tools to help you protect your brand and keep others from stealing your content. Copyscape is a service that searches the web, looking for pages that have copied your content. You can use them now and then or have them monitor the web daily or weekly. If someone out there is stealing your words, you will know who, when, and where.

Similarly, there are many trademark monitoring tools available online. These services will notify you if anyone is using your brand name or product name, and they can do simple searches that check the Federal trademark register frequently, or more extensive searches that check domain names, state business filings, and websites. If someone tries to register a domain name that conflicts with your mark, or applies for a trademark similar to yours, you will know and can handle it. 

5. Deal with infringers

There are a lot of different ways that you can address someone stealing your work. It’s not just about filing a lawsuit. In fact, most of the time that’s the last resort. Many small businesses can’t afford the time and energy a lawsuit requires anyway. Here are are other methods to deal with the problem and hopefully avoid court:

  • Contact the infringer and ask them to stop. Sometimes people don’t realize they can’t use whatever they find online in whatever manner they wish, and some people think it’s alright as long as they say they don’t own it (they can’t and it isn’t.)
  • File a DMCA Takedown Notice. This is a simple letter, but it has some specific requirements to be effective under the law. A DMCA Takedown Notice gives notice of your rights and allows you to ask a website to take the infringing website down. Here is a step-by-step video that shows you how to draft and send a DMCA Takedown Notice.
  • Another option is blacklisting on Google. We all rely on Google to get our business, including the company stealing your content. How much would it hurt to not show up in Google rankings? Well, you can do that. You don’t have to hire a lawyer for it either. It’s a simple form on Google’s website, and they are required by law to take down infringing content.

If your attempts at self-help aren’t getting you anywhere, you can escalate by getting an attorney involved:

  • Hire an attorney lawyer to send a Cease and Desist letter. This probably costs less than you think. In fact, there are plenty of attorneys who will send a letter for a reasonable flat fee. I have to say, I’ve sent many of these letters, and 90% of the time, the infringer says, “Oh, I’m so sorry. I didn’t mean to.” They take it down.
  • For stubborn infringers who have to learn the hard way, you might have to file a Complaint. Just know that 95% of lawsuits do not wind up being decided by a judge. They wind up getting settled. Sometimes you need to file a Complaint just to get an infringer to recognize they need to settle this matter.

Now you understand exactly how valuable the content you are creating truly is. Follow the steps laid out here to protect this valuable intellectual property and you will increase the value of your business, open your business up to new opportunities and ward off would-be infringers.

Rachel Rogers is a business lawyer and founder of the law firm Rogers Collective, intellectual property strategist, creator of Small Business Bodyguard, and all around legal badass. 


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