Copyright Infringement – My Wake-Up Call By Victoria Kirk

The war in Iraq launched my voyage through copyright infringement. Just before the war a fellow Quaker asked me for a web link to an article I had written. Searching for a link to the article that had appeared in On the Issues, a woman’s magazine that died in 1999, I found my story on a large online article clearinghouse. And for only $14.95 I could buy a copy of it! I was stunned, then outraged. How could this happen when I had sold On the Issues only first North American rights? There were no online rights when I wrote the story, so who gave that clearinghouse permission to resell it? Were my other articles floating around cyber-space without permission and payment as well?

Fingers flying over the PC keyboard, I checked Google, Hotbot, Dogpile, Inktomi and other search engines for references to my name. Within three hours, I uncovered over 60 unauthorized uses of my work. The copyright infringers came from eight countries and included Fortune 50 companies, third party “content providers”, management consultants, stockbrokers, a neurosurgeon, entrepreneurs, employment agencies, charities, professional organizations, and universities. Then I searched electronic databases such as EBSCO, Lexis/Nexis, Thomson Gale, and Ovid, and found my articles in magazine archives that publishers apparently had sold to them in chunks. I felt sick.

I called Sallie Randolph, a Buffalo-based copyright lawyer who has successfully settled contract disputes for me, for about $20,000 total. Sallie’s polite but firm hand with recalcitrant publishers makes her my ideal lawyer. When I outlined the infringements, Sallie said, “I think you can retire on what we’ll win in this case.” Then the work began.

Sallie, aided by her student at SUNY-Buffalo’s law school, marched me through these steps to prepare for legal action: print out lists of all my articles for each search engine and circle each violation; click to the website and download a copy of the pirated material; if possible, buy a copy of the stolen work and pay by credit card for proof of purchase; then match hard copies of my original articles to the web copies. Then I grouped the articles by year.

After organizing the articles by year, I transferred the information to the U.S. copyright office’s Form GR/CP, which allows authors to copyright all articles published in the same year. Sallie explained that while every author should copyright all new articles every six months, we could file retroactively even though I had never filed for copyright.

Then I faced a difficult decision-to pay $30 for each year’s filings (’94, ’97, ’98, ’99, ’00,’01, and ’02) or $580 per year for expedited filing. The $30 filing meant that getting the copyright in hand could take a year or so; expedited filing promised turnaround in weeks. After much soul searching I chose expedited filing for three years with the most potential for big settlements. I then created a database of all the articles, the infringers, and comments, so that Sallie, the law student and I could transmit information electronically.

Now comes the hardest part. I wait as Sallie executes her strategy of systematically pursuing each copyright violator to collect monetary damages for theft of my intellectual property. Maybe it’s too soon, but I’m looking for a peaceful cottage in the woods-my retirement home, courtesy of those who thoughtlessly stole what belongs to me.

The only way to protect ourselves is through smart, upfront negotiations with publishers. In tough economic times, when editors and publishers claim financial hardship, make nice, or hardball us into signing away rights, it’s difficult to persevere. However, it’s possible. For example, I have a ‘model contract’ that I use for magazines; they pay fairly for first time use of the article, and a separate fee for online rights.

Due to current litigation, Victoria Kirk is a pseudonym used by the author for this article. For advice on suing for unauthorized use of your material (rather than the time-consuming prospect of suing for copyright infringement in federal court), see How to Deal With Online Media Pirates.