Design copyrights protect some, but not all, designs. If someone infringes on your design copyright, you may take a number of actions to win compensation and prevent further infringement. Even if copyright law does not protect your design, the person who used it could assert a legal defense.
To qualify for a design copyright, your design must be original, useful and ornamental -- attractive or distinctive -- indicates the United States Copyright Office. Copyright protection begins the moment you make your design public. Each copy of an article containing your design should feature a legal design notice -- the words "Protected Design" or the letter "D" in a circle. Your copyright expires two years after you first make it public, unless you apply for registration with the U.S. Copyright Office during that time. Your registered copyright expires the last day of the tenth year after you first publish it.
The "Cease and Desist" Letter
Sending a "cease and desist" letter to the infringing party serves as the first step to enforce a design copyright. The letter, typically sent by a lawyer, identifies the copyrighted design, identifies you as the copyright owner, describes the infringement, demands that the infringement stop and threatens legal action. You could win higher damages in a copyright infringement lawsuit if you show that the infringing party knew that your design was copyrighted at the time of infringement. It may be difficult for the infringing party to claim that the infringement was unintentional if he continues violating your design's copyright protection after receiving a cease and desist letter.
If a copy of your design appears on a website without your permission, check the website's copyright policy, which should be displayed prominently on the site. The Digital Millennium Copyright Act of 1998 requires online service providers to designate an agent to receive complaints about copyright violations. Contact the website's agent and describe your complaint; include a copy of your copyrighted design in the correspondence if you have not already registered it. The website should remove the infringing copy.
Copyright Infringement Lawsuits
After you receive a certificate of registration, you may sue for copyright infringement in federal court, even if an infringement occurred before registration. In some cases, you may seek statutory damages of up to $150,000 per infringement. The defendant also may have defenses available to him. If you failed to place a design notice on each copy of the article displaying the design, for example, he could win the lawsuit by proving that he did not know your design was copyrighted. He might also claim "fair use," meaning that he used only a small part of your design for a socially-beneficial purpose such as education, commentary, criticism, news reporting, scholarship or research.