Copyright is a form of legal protection given to someone who has created an original work of authorship, such as a song, movie, literary piece, or software. The United States government governs copyright law and gives the creator the exclusive right to decide what others do with their work. It prevents others from stealing their work and using it as their own. Copyright will protect a work for the life of the author plus an additional 70 years thereafter. Works that are eligible for copyright include:
- Literary works (e.g. books)
- Sound recordings and musical works (e.g. songs)
- Dramatic works (e.g. plays)
- Graphic design work (e.g. images)
- Videos (e.g. movies)
- Architectural works
Copyright differs from trademarks, which mostly concern branding, as well as patents, which concern inventions. Copyright protection does not extend to ideas, concepts, discoveries, or theories unless they are put down (or able to be captured) in a tangible form.
Types of Copyright Protection
Copyrights are a form of intellectual property. The Copyright Act gives authors of original works control over who can reproduce, copy, distribute, or transform their work. Copyright is attached to the work as soon as it’s created.
Registration is optional and not a requirement. However, it can be helpful as it gives the owner the right to sue a third party for infringement of the copyright. Registering a work for a copyright validates the copyright and increases the chances of the owner winning such a claim.
Copyright Protection Requirements
For a work to meet the requirements of copyright protection, it must satisfy two basic criteria: originality and fixation.
- Originality To be considered original, a work must be independently created and not copied from another. The work must only show a minimal amount of creativity to be considered original. Even so, very few works fail to meet this requirement.
- Fixation For the fixation requirement to be met, the work must be fixed in a tangible form. The work is considered to be fixed as long as it is able to be perceived, reproduced, or otherwise communicated for a certain amount of time.
What Is Copyright Infringement?
Copyright infringement occurs when a person encroaches on a copyright by using a creator’s work without consent. This includes all manners of distribution, such as performing, selling, broadcasting, etc.
Examples of copyright infringement include:
- Using a person’s photographs without permission (e.g. on a website)
- Selling merchandise that uses copyrighted logos, texts, or images
- Illegally downloading music or a movie or clip
- Recording a movie in the theater
- Publishing a copyrighted song to a website
When a creator’s copyright has been infringed upon, they have the right to sue the person who illegally used their work for monetary damages. Infringement can occur with or without monetary gain.
Digital Rights Management: Digital Rights Millennium Copyright Act (DMCA)
In 1998, an extension was made to existing copyright laws to meet the needs of the digital age. This is known as the Digital Rights Millennium Copyright Act (DMCA). DMCA protects digital copyrighted work from being used against the owner’s permission. As with any copyright, the work does not need to be registered to hold the copyright.
Copyright Infringement Notices
When a copyright infringement allegedly happens, the accused will receive notice through mail, e-mail, in person, or by phone. When a notice is received, the first thing that person should do is reach out to an experienced attorney who will be able to recommend the best course of action and guide them through the entire legal process.
In addition, one needs to be aware of possible “copyright trolls,” or scams that will falsely claim copyright infringement and demand money from innocent people who receive such a claim.
How Is Copyright Infringement Proven?
When a lawsuit is filed, courts will usually require the plaintiff to prove that their copyright exists and was infringed upon. To prove civil copyright infringement, the plaintiff must establish the following:
- The plaintiff had a valid copyright
- The defendant used, copied, or distributed the material without the creator’s permission
To prove criminal copyright infringement, the plaintiff must prove:
- The defendant violated the copyright willfully
- Infringement was done on purpose for financial or business gain
Consequences of Copyright Infringement
Being sued for copyright infringement is a big deal. Copyright infringement penalties can be both civil and criminal and may include:
- Civil penalties of up to $150,000 per work if intentional infringement is found
- Statutory damages between $750-$30,000 per work infringed on
- Criminal penalties of up to $250,000 per work and up to five years in prison
- Actual infringement damages and profits obtained due to infringement
Defenses Against Copyright Infringement
Not everyone who is accused of infringement is found liable. Several defenses are used to defend a person who has been accused of copyright infringement and the case is brought to court.
There are circumstances where a person can use a copyrighted work without permission or legal consequences. The defense of fair use can be used when:
- The use is for a non-profit, educational value
- It does not harm the value of work
- It uses a limited portion of the work
- It transforms the work enough to change its character and purpose
Statute of Limitations
When a time frame passes between the copyright infringement and when the claim is filed, a statute of limitations deadline could void the claim.
If a person can prove that they have permission to use the work, then infringement has not occurred.
Lack of Originality
A copyright is only valid for a work when the work is original. The owner must show that the work was independently created and shows at least minimal creativity.
The defendant may be able to successfully argue that the work in question is the “public domain.” This would mean that the work failed to meet the requirements for protection, the work has outlived the duration of the copyright, or the work was placed intentionally in public domain by the creator.
Copyright Infringement Defense Process
For a copyright infringement claim, here is how the defense process works at Rosenblum Law:
The person who received notice of copyright infringement will call our offices and provide us with the letter, email, or other document that was received from the rightsholder claiming copyright infringement. We then provide a fee quote. We will then contact the opposing counsel to inform them of the client’s representation by our law firm.
Once hired to represent a client, the first thing we will do is determine whether the claim is legitimate. Claim legitimacy will be determined by verifying evidence and determining whether the infringement occurred. Another thing attorneys will look at is when the copyright was filed. If the copyright was registered or assumed after the apparent infringement happened, then the claim is invalid. Our attorneys will also be able to provide insight into whether the copyright infringement claim is legitimate or a scam.
Negotiations and Settlements
If a claim is legitimate, in most cases, the case will avoid litigation and go to settlement instead. During a settlement, our attorneys will negotiate with the plaintiff and once a reasonable amount is agreed upon our client will be looped in. If all parties agree with the settlement terms, the client will pay the amount agreed upon and an agreement will be signed.
If a client has already been sued, upon settlement the plaintiff will be required to file a discontinuance to formally close the case. This means that the defendant will not be able to sue for the same infringement again. However, this does not protect against future cases. After the plaintiff is paid, the settlement agreement is signed, and the discontinuance is filed, the case is closed.
Copyright Infringement Settlements
Being accused and found guilty of copyright infringement can be costly. The first thing the convicted person may think to do is ignore it. Unfortunately, doing nothing about a copyright infringement lawsuit will cause the person to lose the case by default.
Another first reaction is to hire an attorney and fight it out in court. This is also not a good idea. When a copyright infringement case goes to court, it will most likely be a loss for the defendant. In most cases, the prosecuting party already has evidence in hand of guilt, and it will be hard to convince a court that infringement didn’t occur when the evidence is present and evident.
What Is a Settlement?
In many cases, a copyright infringement settlement is the best option. A copyright infringement settlement is when both parties agree on a sum of money that the defendant will pay to the copyright owner in exchange for them promising not to bring them to court.
Benefits of Settling
Cases are “settled” all the time. Going to court is costly and time consuming for both parties involved. Settling is a better option than going to court because an experienced defense will be able to negotiate a much lower rate during a settlement than would be owed if the case was lost by default or lost in a trial. In addition, settling a case cuts out the uncertainties and risks involved with going to court.
When confronted with a copyright infringement lawsuit, it‘s always best to hire an attorney and settle your case as soon as possible.
Hiring a Copyright Infringement Defense Lawyer
If you received a notice of copyright infringement, there is no time to waste. The attorneys at Rosenblum Law are ready to assess whether or not the claim is valid and, if it is, negotiate a fair settlement on your behalf. This will allow you to put legal troubles behind you once and for all.
To learn about our settlement success rate, watch this video:
E-mail or call 888-815-3649 today for a free consultation.
The first thing you should do after receiving a copyright infringement notice is to contact an attorney experienced in copyright infringement defense. They will be able to determine the legitimacy of the claim and guide you through the process.
While this may seem obvious, the first rule is to avoid copying work. Don’t assume that everything on the internet is fair game. Generally speaking, anything you see on the internet has been copyrighted so if you copy, reproduce, or display this work you can be held liable, whether you did it for monetary gain or not.
It’s always recommended that you contact a lawyer when you are being accused of infringing on a copyright. An attorney can help you negotiate a settlement that may be significantly less than what you would pay if you risked fighting the case in court.
An attorney will be able to look at all the facts and help guide you through the best course of action. You can expect someone to defend you and, in most cases, help negotiate a reasonable settlement on your behalf.
The rightsholder will show copyright infringement by proving that (1) their work has a valid copyright and (2) the work was reproduced, copied, or distributed without permission.
It will depend on the type of case, the circumstances, and the number of infringements the person is accused of committing. Contact Rosenblum Law for a free initial consultation and quote.
When a copyright is federally filed and registered, the person has the right to damages.
The time it will take to complete a copyright infringement case will vary. In most cases, the matter will go to settlement where the amount of damages will be negotiated. Negotiations are not typically a lengthy process compared to litigations, which may take years to complete.
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