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Can I sue someone for copying my flyer design even if the flyer I created uses a few uncleared copyrighted images I don't own?

Denver, CO |

I created a flyer design using several images, most are stock images I have paid for but a few others are copyrighted images that I still haven't cleared. The juxtapositioning of the images, blending, color changes and typography create a work which is distinctly mine and different from the original images. Someone came along and used the top portion of this flyer design and blocked over a chunk of the bottom and placed their own text. They even used the date text I created at the top since their event happens to be on the same date. I have sent a cease and desist and intent to sue for using my work without permission. They retorted back with "Please send us your copyright and permissions to use the artists featured on the flyer" since they figured I might not have permission myself.

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Attorney answers 2

Posted

You should contact an IP attorney to discuss the specifics of your claim and whether you can sue over the alleged copying. Generally speaking, one does not own a copyright in text, images, blending, color changes and typography. Rather, one owns a copyright in the creative expression of those. So to the extent you have taken non-copyrightable elements and combined them into a copyrightable express, you would have a case of infringement if someone else copies your work. If you cannot locate a local IP attorney, feel free to contact me.

Victor - vjohnson@ylawgroup.com

Bruce E. Burdick

Bruce E. Burdick

Posted

It would be well to mention to him 28 USC 1338(a) and 17 USC 411(a) and how he has likely lost statutory damages and made himself look like a fool to the other side.

Posted

NO, you cannot sue them and were very foolish to send a CDL yourself. You need a copyright lawyer immediately before you do something else dumb. Under 28 USC 1338(a) the US District Courts have exclusive jurisdiction to hear copyright cases. http://www.law.cornell.edu/uscode/text/28/1338 And under 17 USC 411(a) registration [or application for registration] is required. They know you don't have one so that is why they asked. You screwed up by sending that letter without first obtaining a copyright registration. Now you will be limited to actual damages which will be insufficient to justify the suit. Had you obtained registration, you might have a claim for up to $150,000. If you had consulted an attorney instead of going cheap you might have made thousands. Now you will get nothing. Sorry. Next time see a lawyer.

If you persist with your CDL now, unless you get permissions for the images, you may be on the receiving end of a copyright shakedown letter for the images you stole. Sounds like the other side is laughing at you, and with good reason.

L2BL: Not getting a lawyer can cost you thousands of dollars.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Bruce E. Burdick

Bruce E. Burdick

Posted

I am licensed in TX, but am inactive there. I could handle your case, but am currently too busy, sorry. Contact Attorney Johnson, who will know the laws I mentioned to you.

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