At first, the pyramid builders of Egypt believed their great fortresses would deter robbers and safely contain the treasures inside for centuries.  Instead, the huge edifices acted as beacons that told looters exactly where to dig. Centuries later, Gone with the Wind producer, David O. Selznick, also had his moments of vulnerability.  The more things change, the more they stay the same.

     Build a hugely successful, visible web site (TpT), fill it with treasure (our work), invite the public, create a few stars (top sellers), and the looters and copycats will come!  Some don't attempt to conceal their presence.  Others are masters of disguise.  At times, trying to distinguish real rip-off artists from legitimate sellers posting similar materials creates a quagmire of frustration.  To add to the confusion, having one's work copied and resold by another is not actually a matter of theft in the legal sense but rather an unauthorized useof one's exclusive rights as the copyright holder.  The offending party is merely an infringer-a puny term considering the stress involved.  Furthermore, detecting and halting the infringer is the responsibility of the copyright holder.  Gr-r-r-r-r-r-r!

     From a broader perspective, however, these chiselers start to look more and more insignificant when seen as part of the whole picture.  Just exactly how much damage can they do as no more than a few specks in our world-wide marketplace?  Furthermore, when a copyright is "infringed," nothing is actually "stolen."  The author still possesses the work and the exclusive rights to it, which includes selling it. On the other hand, spotting one of your items posted on a school website where it can be downloaded for free is more than just a little irritating.  And, what if, to your horror, you find that another seller has outright plagiarized your work and stocked a TpT store with it?  Once the fire stops shooting from your eyes, then what?

     To begin with, we should not allow the possibility of encountering imitators and plagiarists discourage us from putting our work out there, not even for an instant.    We do have resources.  But first, if you start to think your rights might be under attack, remind yourself that. . .  

·      ideas are not copyrightable.  Anyone has a right to post a product based on a universal idea-such as the "spelling game" that you created and downloaded well before the ten others similar items that you watched get added to the site.

·      titles, names, and short phrases are not part of any author's exclusive rights.  Another seller can find one of your titles, like it, and use it for his/her product.  Legal, but reprehensible!  Let's respect each other more than that.

·      the same clipart you add to your products can be used by other sellers.  Unless you create it, clipart is not part of an author's copyright.

     You are probably dealing with a real infringer when

·      you find a product on TpT that is a reformatting or rearranging of your exact work.  Such activity does not qualify as creating an "original work of authorship." 

·      you come across a file that contains exact copiesof portions or full files from your work mixed in with work from other sources.

·      you have not attached a CC license to your work giving permission for it to be copied and resold, but there it is, posted under another seller's name.

     When you are satisfied that you are the target of an actual copyright infringement, contact TpT immediately at info@teacherspayteachers.com, report the facts, and ask that the matter be investigated. Rest assured that those who engage in blatant plagiarism have been and will be banned from the site! 

     Dealing successfully with pilferers who work right under our noses is swift and sure.  Handling an occasional off site infringement can get tricky.  The severity of the incident, possible solutions, and potential consequences all have to be considered. 

         The Doctrine of Fair Use and the Classroom

    Imagine being required to contact every copyright holder for permission before copying or incorporating any material or media into a lesson.  Because of the fair use limitations of the U.S. Copyright law, no teacher has to operate under such restrictions.  Both technology and groups like Creative Commons are constantly stretching the fair use concept, mostly in the educator's favor.   By composing work intended to be copied and distributed, we are contributing to that stretch, but we certainly aren't relinquishing our author's rights in the process. Thankfully, for the most part, our customers follow the four fair use factors that educators must consider.  The fourth item--the effect of the use upon the potential market for or value of the copyrighted work-affects us more than the others.

     Predictably, some teachers will purchase our work and share it with a colleague or two, which is probably illegal. But it's also a given that this type of "use" won't be on such a grand scale that huge numbers of potential customers will have no need to buy our products.  Quite the contrary, we probably pick up sales because of sharing.  Legal or not, this is impossible to police and a forget-about-is circumstance.

     What if, as a precautionary measure, you Goggle your best-selling title and find it posted on a school website or a blog, sitting there without password protection, free for the downloading?  Illegal?  Most likely.  But then, is this particular "use" generating so many free downloads that the market is being saturated and your ability to sell the item is being damaged?  How much real danger do you face as a merchant in this situation, and how would you prove your losses if you had to? 

     Still, no educator should be allowed to wantonly post copyrighted material for the taking as it is clearly contrary to the spirit, if not the letter, of the law.  You have every right to contact the teacher and ask that your material be removed.  If you do, will he/she understand your position or vow never to buy from you again and say so to countless other teachers?  And if your copyright markings and your TpT store references have been left intact, isn't this free advertising? Is there obvious intent to do harm?  Where is the vantage point?  Welcome to that proverbial spot between the rock and the hard place. How you might deal with this difficult decision is definitely worthy of forethought.

     On a positive note, TpT is in the process of working out a program that will allow individual schools and whole school systems to purchase multiple copies of our materials for use by groups of teachers.  We'll soon see how the doctrine of fair use can work in our favor! 

     The Secondary Market

     The secondary market allows individuals to resell any item purchased legally on the retail market without having to share profits with the original manufacturer or copyright holder.  Of course they can do this only once.

     Those of us who have been selling our work as hard copies or on CD's for quite a while are already finding it posted on Amazon.com and other such secondary markets.  Normally, it should be listed as "used," but if the seller didn't open or use the item, then he/she can rightfully list it as "new."  Unless you find a merchant selling multiple "new" copies of one of your products, which reeks of plagiarism, don't bother arguing with the secondary market.  It's a losing battle.

Out on the Internet

     To think that someone would join TpT specifically to purchase a collection of top-selling products, set up and stock a store with the plagiarized items, and then offer them for sale on still another site is mind boggling.  Surely such a thing would never happen.  Sadly, several of our top merchants can attest that it has.  Dealing successfully with a plagiarist who has migrated out onto the internet is frightening but doable. Fair warning is usually sufficient, but should you ever find yourself stuck in this rare complication, go to the Seller's Forum and ask for help.  Those who have "been there, done that" will clue you in. 

 Working Together with Support and Respect

     The small percentage of infringers and copycats lurking within TpT's burgeoning seller/customer pool can be expressed with a decimal point and a couple of zeros.  The annoyance factor they can create, on the other hand, is much more substantial.  Someone encroaches upon our work, real or perceived, and we coil up like pith vipers. No apologies necessary. Strictly emotional initial reactions are understandable. Failure to unwind and take a calmer view, however, robs us of time and brain power better spent creating new products.

     Each of us can help reduce group stress by agreeing to go mining in places other than a colleague's work when we want to add a new spin to a popular idea or join the action when a particular topic or category makes the hot-seller list.  We should also support each other by reporting suspected cases of copyright infringement-our work or anybody else's-on the Forum for second looks and opinions.  Group feedback is a great way to turn non-productive anxiety into organized action.

     For those times when you need a few other calming thoughts, try these:

·     No copycat or infringer has ever put a TpT seller's store out of business, and, given the vigilance of the site's administration, none ever will. 

·     As the first of its kind, TpT itself has had its own stressful encounters.  The site's success has flushed out a hoard of wannabes, and they have been busy populating the internet with TpT-like sites, all of them legal. Still, TpT continues to outshine every one of them. 

·     A copy is never as good as the original.  Creativity cannot be duplicated.

             We have at our disposal an infinite and universal collection of ideas that can be melted, embellished, twisted, or teased according to our individual creative likings. So, don't just sit there.  Grab an idea, gather your most creative talents, and get going.   Don't be distracted or overly concerned by the ditto people and those who push copyright legalities to the limit.  Originality is not their strong suite, and you will always have the advantage.     

 

 Margaret Whisnant             

TpT Teacher/Author