After you have invested the resources necessary to obtain a copyright, the next logical step is to surveil the competition for potential infringement. If you know or suspect copyright infringement has occurred, pursuing litigation is in your interest since it can help protect your investment. An intellectual property lawyer can analyze the alleged copyright infringement and determine if there is solid legal footing for legal action.
If you are like most business owners and managers, you have a general sense of what intellectual property is and how it is protected. However, you probably aren’t exactly sure what constitutes copyright infringement and how to take legal action. This is your quick and convenient guide to copyright litigation, including what it involves and how it can impact your copyrights.
Understanding Copyright Law
Copyright law states that the originator of a work is the author. However, there is the potential for the author to assign intellectual property protection to another organization or individual, transferring the copyright to someone such as a business partner or a publisher.
The purpose of the copyright is to safeguard the creative work in question. For example, novels, newspapers, comic books, and even blog posts constitute literature. Copyright protection extends to other works, including:
- Theatrical works
- Architectural drawings
- Motion pictures
- Sound recordings
The length of time that a copyright is applicable to a specific work hinges on several nuances. One of those nuances is the publishing status of the work. If the work is published, the date of initial publication is important.
Works generated in 1978 and after have automatic copyright protection for the author’s life, with another 70 years tacked on. The length of copyright after initial publication is 95 years for anonymous works or 120 years following the year in which it was created, with the one expiring sooner as the default. The terms governing the length of copyright protection are less straightforward for works created before ’78, yet the general rule is that copyright lasts for 96 years after publication.
What Copyright Ownership Really Means
Owning a copyright pertaining to a creative work gives the owner the right to reproduce that work in all mediums. The copyright owner is legally empowered to present or perform the work in public, be it in the form of a movie screening, a streaming service production, a stage production, etc. The owner of the copyright can also generate derivative works, such as sequels.
Acquire a copyright, and you’ll find its protection has limitations. Copyrights do not cover the brand name, business name, or logo. Nor do copyrights protect concepts, ideas, designs, systems, or processes. Furthermore, copyright protection does not extend to work that is considered publicly owned, such as the text of state or federal laws.
What Constitutes Copyright Infringement?
Copyright infringement is when a copyrighted work is presented, performed, copied, or distributed without the owner’s permission. Moreover, if the work is used to inspire a spinoff, referred to as a “derivative,” infringement has occurred. While many individuals tend to think of copyrights relating to books and works of art, they can also extend to software. Many of our clients today face challenges when it comes to copyright infringement, which is why knowing your legal options is critical to protecting your work.
The owner of the copyright can sue in civil court in the quest to obtain an injunction to prevent the alleged infringer from using the material that has been copyrighted. An intellectual property attorney will also help attempt to recover financial damages for illegally using the copyrighted material. There is even the potential for the United States Department of Justice to consider the potential for criminal copyright infringement.
A copyright infringement claim strategically crafted by an attorney includes several key elements. In particular, two specific elements are to be established in court when alleging copyright infringement. The plaintiff’s attorney must demonstrate that his or her client owns the valid copyright. The plaintiff is to demonstrate that the work in question is original. It must also be proven that the work in question is available in a tangible expression medium.
The copyright has to be valid, meaning it cannot have expired and entered the public domain. Finally, the plaintiff must establish it registered the copyright so it is publicly known. Copyright holders typically provide the United States Copyright Office with a copy or multiple copies if the work has been published. The work is registered, and a fee is paid. The formal registration sets the stage for ensuing copyright infringement lawsuits.
The plaintiff also bears the burden of proof to show that the defendant has violated the work’s exclusive rights. The plaintiff’s attorney will present evidence that the defendant illegally used the copyrighted material.
However, proving infringement becomes much more challenging if the copyright infringement lawsuit centers on using a derivative work. The plaintiff’s attorney is to present a compelling case that there are significant similarities between the work that is copyrighted and the accused party. Some such lawsuits are successful when the plaintiff’s attorney proves the accused accessed the work in question before creating the derivative.
When Copyright Infringement Becomes Criminal
If the accused acted in a willful manner and made an effort to obtain financial gain from the work or has another commercial motivation, there is an opportunity to elevate the lawsuit to criminal court. A willful action is one that is intentional.
Even if the defendant did not make money from the work in question, if there is intent to make money from it, prosecutors can establish criminal copyright infringement.
Examples of the Most Common Copyright Infringement
Though few are aware of it, copyright infringement regularly occurs in office settings. Making physical copies of works, sharing works through email, or sharing them through document servers constitutes copyright infringement.
Even duplicating a work through digital means constitutes copyright infringement. In some cases, it merely takes a few clicks of a mouse button to cut and paste a song or other work of art in digital format.
Penalties for Copyright Violation
The breach of copyright spurs the awarding of civil damages. The defendant found guilty of infringement will face fines ranging from $750 all the way to $30,000 for each work infringed. The court might also mandate that the defendant provide financial compensation to the plaintiff for attorneys’ fees and court costs. Moreover, the judge will likely issue an injunction preventing the defendant from using the work for continued infringement.
If the accused is found guilty of engaging in willful infringement, there is the potential for fines to jump all the way to $150,000 for each work infringed. The defendant might also face criminal penalties, including imprisonment for upwards of half a decade, along with a quarter-million dollar fine for each offense.
Copyright infringement carries a statute of limitations. After learning of the alleged infringement, plaintiffs generally have three years to file a lawsuit. If copyright infringement is still occurring, the statute of limitations countdown begins when the most recent infringement occurred.
Congress recently passed CASE legislation to form a Copyright Claims Board to decrease the cost of litigation and time for litigation. The Claims Board is responsible for claims of copyright infringement with a maximum statutory damage of $30,000 per claim and half that amount for individual works. Though the board is not empowered to issue injunctions as a judge issues in a court of law, it can order accused parties to stop infringing.
Copyrights in the Context of Other IP
Intellectual property tools extend beyond copyright, providing protection in the form of trade secrets, patents, and trademarks. Though copyrights provide protection longer than the two decades of protection available through patents, they do not provide nearly the same length of protection available through trademarks. Trademarks can be renewed every decade indefinitely. Trade secret protection ends the moment the information is publicized.
Copyrights are similar to trademarks and patents. Trademarks are used to protect images, designs, and names that distinguish the holder of the protection within the marketplace. Alternatively, patents cannot be used in items for sale. Copyrights serve both purposes, proving applicable to works available in markets and extending to private works not yet published.
There is also the potential for a litigation overlap in regard to intellectual property protection tools. An individual can file for both copyright and trademark infringement if the property that is infringed on has similarities to products available on the market.
Consult With an Intellectual Property Attorney for Copyright Litigation
If you hold a copyright and believe infringement has occurred or seek protection through a copyright, do not attempt to navigate the legal maze on your own. Lean on an experienced intellectual property (IP) lawyer for guidance.
An attorney will review your case, determine if there is sufficient evidence for copyright litigation, and fiercely advocate on your behalf. Your attorney will push for the accused to cease the use of the work in question. Obtaining financial compensation to right this egregious wrong might also be possible.
Our commercial litigation attorneys are a call away. Reach out to us today to schedule a consultation with one of our intellectual property attorneys. Contact our office by phone at (408) 255 6310 to get the ball rolling on your intellectual property case.