Copycats 101: How to protect yourself and what to do if someone copies you online with Riz Amin

Copyrights and trademarks aren't a sexy topic—and not one that business owners usually consider until they're faced with a copycat. And then it can potentially be very, very expensive. In today's episode, I chat with Riz Amin from Foundd Legal about the legal side of copycats, and how to prevent them from striking!

– Understanding when copying becomes a copyright infringement
– Some practical steps you can take to prevent copycats
– Trademarks vs copyright, and how best to use these in your business
– Tips for addressing copyright infringement if you find a copycat
– How to avoid accidental copying in your business
– The new world of AI & Chat-GPT and the copyright minefield this can present

You can find Riz at https://www.instagram.com/founddlegal/ and check out her website at https://founddlegal.com/ to access a copy of The Copycat Kit

 

Today I am bringing in my good friend Riz Amin from Found Legal to talk all about a topic that isn't relevant until it's really relevant, right? We don't love to talk about legals and copywriting and trademarks.

They're not as sexy as Instagram or TikTok until somebody copies you, and then you actually need to take action and you need to protect your brand against that. 

So today, Riz and I are talking about how you can proactively prevent a copycat and how you can react if somebody does copy your brand or parts of your business. We're talking about how you can accidentally avoid copying someone and we're also talking about a really exciting topic which is copyright around content created by ChatGPT and other AI, because that's a very new, very developing, very complex topic, and I think it's worthwhile looking at this if you are somebody who is considering using ChatGPT in any part of your content creation process now.

I do want to disclaim that this is from an Australian legal perspective. Riz is a lawyer here in Australia. It might vary from country to country and also that the content in this episode is not specific legal advice for your situation. It is for general purposes only, and if you do need specific legal advice, always go and see a lawyer for your situation.

So without further ado, let's jump into today's episode with Riz.

 

What is copying and not copying

I want to kick off by talking about this concept of copying because it's very easy for somebody to say, oh, this person copied my idea, or they copied my Instagram post but I'm curious to know, like from a legal standpoint, what is actually copying and what is actually not copying. 

No, that's a good question because there's a myth out there that if you copy 10% of something, it's okay. It's more a question of how substantive that is, how important that element that you've copied is to that content. So it's not a case of just simply saying, Hey, I copied only 10%, so I'm okay. Copyright infringement is something that you have substantially copied, but it's not the volume if  what I mean. It's the quality, the quality of that copying as well. 

If it's a key part of what you've copied, then it's copyright infringement, ? And in terms of online businesses and social media, when you copy somebody's caption word for word, and then you put it onto your profile on your Instagram and don't credit them or don't seek their permission and it's their original content, you are infringing. 

Whether that's words, whether that's an image that belongs to them, that's copying and you can seek permission. You can license, you can do many of those things, but you can't just expect to be able to use what you found on the internet willy-nilly. You've got to do your research. You got to make sure it's not somebody else's original content. 

What about you've had an idea for an online course, for example, and you've created that course, you've launched it, and then somebody else out there goes and creates a course with exactly the same idea, but the content inside the course isn't your content, is that copying the legal sense? 

That's not, I wouldn't say that was copying. If you say you are a digital marketer, there are many digital marketing courses. There are many social media-type courses and how to Launch a membership course or how to Launch a course, and they are similar, yet they will be different because of the creator and the input by the creator.

So the idea is not necessarily unique anymore. It's how you interpret that idea, how you present that idea and what you put into that idea when you Launch it. Make it real. Make it something substantive. So copying the idea is not, um, copyright infringement, but copying the content is. 

 

How can somebody prevent a copycat? 

There are quite a few things you can do and a number of practical things. You can make sure you have terms and conditions on your website and on any content you create. Have copyright notices as well and keep track of anything you create. So you've got an internal digital footprint with timeframes, and dates, if you like as well, should the inevitable happen and you get accused. You would also have copyright notices in your content.

You can use technology to assist you as well in terms of protecting your content but what I always tell my clients is as best to be as proactive as possible with your content and how you protect it through your terms and conditions on your website. If you have contracts, you're a service provider and you provide one-on-one services, make sure you've got language in those agreements around who owns the IP that you create and how does that work?

There's no legal requirement to have a copyright notice as such, but it's important from being proactive and protecting your content and I believe there is technology out there that can also help you protect the content as well.

 

Copyright vs. Trademark

With copyright, what happens is the moment your idea is put to paper or to Google Drive or whatever. The moment it's expressed, it lives and breathes and you have copyright in Australian law. The moment they are expressed, they're not just an idea in your head and it includes other things like other written work like textbooks, poetry, manuscripts, et cetera, and sound recordings. And even actual performance works like dance choreography. All of these things are protected by copyright, and it generally lasts your entire lifetime. 

And what you can do is you can trademark your business name, you can trademark your logo, slogan, or phrase. You can, in fact, trademark colours, shapes and even signs, as well.

So if you were to create a course, your content is protected by copyright and you can protect your course name or tagline, or logo that you may use via a trademark. And that's the extra layer of protection you can get. As I said, with copyright, you don't have to do anything as such other than create it for it to exist and be protected under the law.

 

What to trademark and what is not

When I speak to our clients when they want to trademark something, my question to them is, what is your business strategy for the business, what are your plans? What do you want to do with this? Where do you see it in a few years time? And what are the things that you want to protect that going to sit under that? 

And although it may seem or sound expensive to do it, register that trademark, it's a lot more expensive to fight an infringement when you haven't registered a trademark. So you've got to weigh up the pros and cons. Be proactive with protecting that trademark and registering that trademark is a lot less expensive than fighting an infringement argument.

Or if somebody's infringed on your trademark and trying to protect that brand name that you have when it's not registered is a lot harder and a lot more expensive. And the other thing people don't think about necessarily at the beginning, because why should they? But when you are setting up your business and you are distracted by all the shiny toys, your branding, your website, your graphics, and all the pretty stuff, you don't think about the longevity of that business necessarily, or where it might take you. And when you protect your copyright and you protect your trademark, so that under that umbrella of intellectual property, it's a business asset, so that if one day he wanted to scale it in some way through licensing.

 

What do you do if somebody has copied you?

First of all, don't go crazy and name and shame, calm, collect, calm head is the best. Screenshot, get any evidence before it disappears as well, and then reach out to them. Reach out to them via DM, via email if there's a way to reach out to them first and let them know because they may not realise they're infringing on your copyright. And they may, upon being notified, stop what they're doing, and remove that content that's infringing on your copyright. So it's worthwhile taking that step first. 

And, and you obviously can provide the evidence that you've collected, show why you own that copyright, and do all those things and hopefully, they remove that content. If that doesn't work, then you can do a couple of other things as well. 

One is you can, if it's on Instagram for example, or Facebook, they have a form that you can complete. It's essentially a take-down notice, so you let them know and provide the evidence. And they can then assist you. And platforms like Shopify also have a similar process where you let them know, show them the evidence, explain, what the grounds are, etcetera.

So there are other steps you can take, not just directly with the person who's infringing. You can go to the platforms they're hosted on as well. The other is to write to them more formally which is called a cease and desist letter. You can do that yourself but you can also engage your lawyer to do that because typically it carries more weight when it's from a lawyer and in there you need to back yourself. 

And if you ever do it yourself, make sure you send it not just via email, but also via registered post as well, if you can access an address if at all possible. Your cease and desist letter also need to let them know what you're going to do if they don't do it in the timeframe you've asked them to act. And that may be taking them to court, that may be escalating it further, that may be engaging a lawyer to take it further. 

That's when it starts to become potentially costly and so far in our experience, we've been able to resolve matters with a justice cease and desist letter. We haven't had to take it further and that has worked. 

The other thing you can do, and I just want to use a course as an example, where your course has been copied and you have all the evidence to show all of that, then you could potentially also get what we call an accounting of profits and you potentially would, I would recommend a lawyer at that point as well because what you can do is get profits they've made off the back of your hard work. Brought back from them. 

 

Tips for addressing copyright infringement if you find a copycat

Somebody will copy my photos and all of my posts, they'll start following my followers. They'll DM them, they'll tell them, buy this from me. One of them was actually even trying to sell my own course to my followers but with a scammy checkout link. 

I'd love to know, from a legal standpoint, if is there anything else that we can do. Also if one of my followers were to get scammed through the link that they've received from this person imitating me, am I then responsible for that?

No, you're not responsible because somebody else has done that. So it's unfortunate, but you are not responsible for that. But you can take legal action against them. The problem is where they're located and typically they tend to be located overseas and it's harder to enforce or take legal action against them other than using the platforms to help you.

But in terms of further legal action, you need to find them first in order to do something about that and that's the tricky part. 

So just having those things, those checks and balances in places really good. One other thing I wanted to say because you said about how you protect your copyright. Another way I wanted to say something about ideas and protecting your ideas is because even though you have an idea, or business concept and you want to discuss it with a potential business partner collaboration or something else.

Make sure you have a non-disclosure agreement in place before you discuss any confidential commercial conversations as well. Because I get it, you might have a genius idea that you find hard to keep to yourself but you never know who's looking around the corner.

 

How to avoid accidental copying in your business

That's kind of a tough one but there are practical steps you can take. Basically, I call it due diligence. 

So I would highly recommend you do a Google search. You do your social media handle searches, because you're going to want to lock that puppy down if you find out nobody else has got it. So lock down, do search domain names as well, and lock that down if it's available. Do a search of the IP Australia Register because that's where trademarks are registered. So do a search there as well.

And one thing people do make a mistake when they're searching the IP register is using the exact spelling of the word. So do try variations. 

 

The new world of AI & Chat-GPT and the copyright minefield this can present

Who owns the copyright or something created by ChatGPT? 

I've already done a blog and it's nearly done but the answer's not very straightforward, unfortunately, because an AI technically can't own intellectual property, at least know in Australia, however, that does not mean that you as the user own the content either the concept of ownership in this context refers to copyright interest or legal ownership. 

And as I was saying to you at the beginning, the legal landscape around AI-generated content and copyright protection is basically a bit complex and is evolving generally, copyright laws were designed to protect, works created by human authors, right?

And then comes along AI-generated content. And so there is an ongoing debate about whether the user's input or direction is the creative contribution and therefore warrants copyright protection but then, in some cases rather, you could argue that the user's inputs guiding the AI through providing the prompts or the instructions. So that's sufficient to establish copyright ownership but that argument's not universally accepted, so it's kind of a up in the air answer at the moment. 

But I would say that if you are putting in all that content and it spikes out something a bit more tidied up, shall we say, I would say if you put in all the hard work, you probably own the copyright, but it's more of a watch this case because until we get more clarity or consensus on the issue, it's best to check in on whether there is going to be copyright implications for AI-generated content because it's just so complex, it's open to interpretation. So you just need to be mindful of what you generate using AI versus what you generate. 

 

Riz imperfect action

All the time. We're about to Launch a membership program and I'm like, it's not perfect, but I don't care. I'm going to learn so much from launching it. 

 

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