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The Origin of Copyright Law
All forms of intellectual property (IP) provide a level of protection and exclusive rights to creators. When looking at each type of protection, however, the argument can be made that copyright is the most extensive. This form of Intellectual property applies to websites, computer programs, pictures, books, photographs, songs and movies along with other original works of authorship not covered under trademark or patent law.
While copyright laws offer protection to the creators of original works, the intended purpose of copyright law goes far beyond that. Copyright protection in the United States dates back to 1787 and the Copyright Clause of the U.S. Constitution. By granting creators exclusive rights over certain works, the framers of the Constitution incentivized citizens to create new works and share them with the public. At its core, copyright law is meant to expand human knowledge and entertainment.
Issues related to copyright have likely expanded far beyond what the founding fathers could have imagined. Therefore, as a creator, you should have a basic understanding of this important intellectual property right.
Registering a copyright with the U.S. Copyright Office is the first step in protecting this type of intellectual property. It’s important to note, though, that registration isn’t required for a work to be protected. Any copyrightable material – ranging from poetry to a sculpture of George Washington – is protected the moment it’s been placed in a tangible medium.
If protection immediately exists, though, why do people bother with copyright registration in the first place? The answer is easy: copyright registration provides added benefits. In fact, failing to register your copyright with the U.S. Copyright Office could make it difficult to stop cases of infringement.
Benefits of Copyright Registration
Those who take the non-mandatory step of registering their copyright enjoy a host of benefits. Fortunately, most of them are directly related to stopping copyright infringement in its tracks. Here are some of the most obvious benefits of copyright registration:
- Infringement deterrence: Having a public record makes it difficult for someone to claim they didn’t know they were infringing upon a copyright. Registration thus serves as a deterrent to copyright infringement.
- Prima facie evidence: Copyright registration serves as sufficient evidence in the court system that you own the intellectual property in question.
- Ability to sue: Even though your works are copyrighted the moment they’re in tangible form, this doesn’t mean you can seek compensation in the courts. You must register your copyright to file a copyright infringement lawsuit.
- Statutory damages and attorneys’ fees: If you register your copyright within certain statutory limitations, you may also be eligible for statutory damages, court costs and attorneys’ fees in the event of an infringement.
- Border protection: After registration, you can go to the U.S. Customs and Border Protection and establish a record that will protect against infringing copies of your work being imported.
How to Register a Copyright
Before you can enjoy any of the benefits of copyright registration, you’ll need to file a copyright application with the U.S. Copyright Office. The Copyright Office is part of the Library of Congress, and this is where you’ll have to submit your documentation. The Copyright Office recommends filing the copyright application online to avoid longer processing times.
During this process, it’s important to remember that the Copyright Office receives around 2,400 submissions daily. This makes patience a virtue. Processing times can take as little as one to three months, though, if the application is submitted correctly and no correspondence with the office is required. However, a more typical processing time is six months. Individuals who don’t submit the appropriate documentation – or have to correspond with the copyright office for some other reason – can see average wait times ranging from 9 months to 20 months. This makes proper submission of the copyright application important so it is done right the first time.
What Copyright Protection Does
Once your copyright is registered, it’s important to know your rights. Unlike trademarks and patents which may expire relatively quickly, you don’t have much to worry about in the area of copyright. That’s because this form of intellectual property doesn’t expire until 70 years after you do. Copyrighted works are generally protected for the life of the author plus 70 years.
It’s also necessary to recognize the exclusive rights provided by such protection. This is important to distinguish since other forms of IP – particularly patents – don’t necessarily grant the owner the right of use. Here are just some of the exclusive rights granted by copyright protection:
- Reproducing the work in any form.
- Distributing copies of original works to the public by rental, lease, lending or sale.
- Putting the work on public display (e.g. screening a movie).
- Publicly performing the work (e.g. plays or songs).
There are other rights granted to the owner of a copyright – including the ability to create derivative works – but the list shows just how extensive protections are for this form of intellectual property.
Using a Copyright Notice
Immediately upon use you should provide a copyright notice on the material. This will typically include a copyright symbol or the word copyright, the year of the work’s first publication and your name or company.
Prior to March 1989, all copyrighted works had to include a copyright notice. While this is no longer the case, doing so carries several benefits:
- You can more easily be contacted by those who want to use your work.
- Including a copyright notice limits an infringer’s ability to claim that their violation was innocent in nature.
- The date helps others determine the length of protection still available.
- Including the notice removes the potential of becoming an “orphan work” (a work where the copyright owner can’t be located or identified to request permission).
- The notice also lets potential users know that a copyright has been claimed over the original work.
There are few justifications for not including a copyright notice. While it may take up a bit of space and add a few seconds to production, it’s preferable over potential lawsuits involving well-meaning users who erroneously thought the lack of a notice meant the work was in the public domain.
Unfortunately, not all instances of infringement are innocent. Many infringers use copyrighted material knowing full well what they’re doing. For example, just think of how many movies are illegally downloaded daily. The problem then becomes, of course, recognizing instances of infringement.
Can I Claim Copyright?
If you create a book, screenplay, computer program or other original work on your own, you maintain full copyright protections over the piece. You can do with it as you wish.
If there are multiple creators involved in a copyrighted work, though, respective rights can become less clear. If you’re working with someone else to create a work that’s interdependent or inseparable, for instance, your creation is considered a joint work that you both have equal rights over. Unless there’s a written agreement in place, either copyright holder can commercially exploit the work. In these cases, though, the proceeds must be shared equally.
If you’ve created a work that becomes part of something larger – such as a film review, annotated book or music compilation – you only retain rights over your contribution. This only applies in instances where you’re working directly with another person to create a final product. The different contributions to the work are separable in these cases.
Never fall under the assumption that you hold exclusive rights over a work simply because you contributed to it. In doing so, you could quickly fall victim to claims of copyright infringement.
At its heart, copyright infringement is an easy to understand concept. If anyone exploits the creative works of another individual without their permission, they’ve likely committed a copyright violation. Exploitation refers to the act of infringing upon a copyright holder’s exclusive rights – including distributing, performing, displaying or reproducing.
There are innumerable ways that someone could infringe upon another’s work. Using an image or photo without the creator’s permission or downloading a movie or e-book from a torrent site both fall into this category. Fortunately, many instances of infringement can be identified by simply being proactive.
What Constitutes Copyright Infringement?
Copyright infringement occurs when a plaintiff can prove:
- ownership of a valid copyright; and
- unauthorized copying by the defendant.
To prove infringement‚ a party must provide either direct evidence that the defendant copied the work or indirect evidence of copying by proving that the defendant had access to the work and that the infringing work is substantially similar.
The touchstone question in a copyright infringement claim is whether substantial similarity exists between the works at issue. If the overall look and feel of the works is the same from the viewpoint of an average observer, a work is likely to be considered substantially similar.
Recognizing Instances of Copyright Infringement
As a copyright owner, you should understand that not every use of your work constitutes infringement. There are very narrow situations when your work could be directly reproduced without a violation having occurred. Of course, you can only recognize these nuances if you track down instances of use that you didn’t grant permission for. Ways to police your copyright include:
- Google text search: Google consistently scours the web for new content. This gives creators of textual works – ranging from literary works to software programs – the opportunity to discover instances of plagiarism. Just choose a distinct sentence from your work and search for it using quotation marks. You can also set up Google Alerts to notify you when new content containing a phrase is published online.
- Google Images: Written works obviously aren’t the only copyrightable material, and Google Images picks up plenty of the slack left by the traditional search function. By uploading your copyrighted images into Google Images, the search giant will track down anywhere your work is posted online.
- Software tools: Even if someone copied an entire chapter from a book, the likelihood of the author choosing the right phrase to search for online is minimal. Fortunately, software tools have improved searches. Copyscape can scan your entire website and seek out plagiarized content.
- Third-party research: No matter how far technology evolves, it’s unlikely to catch every instance of infringement. Offline infringements can be more difficult to find. In these cases Intellectual property professionals – ranging from third-party services to copyright attorneys – can help cover these “blind spots.”
Keep in mind that the onus of policing copyright violations falls upon you. Unlike traditional crimes, the government doesn’t proactively monitor for instances of copyright infringement. If a violation takes place and you don’t respond yourself, the violators will likely continue to infringe upon your exclusive rights. This can quickly devalue your copyright and your work.
Copyright Infringement by Proxy
The advent of the World Wide Web has done great things, but it’s also opened the opportunity for criminals to skirt the rule of law. If you created text and notice that it’s being shared online, for instance, you should be able to take action. Unfortunately, these exchanges are often anonymous, and in many cases, the violators are working from overseas.
Even in instances where you can’t track down the infringing party, you may still have legal recourse. There are many websites out there that try to avoid liability by facilitating the peer-to-peer transfer of copyrighted material without actually hosting the content themselves. Luckily, the law has evolved to the point where these “middle men” can still be held accountable.
Napster and The Pirate Bay are two of the most recognizable examples of websites that tried to work within a gray area of copyright law. It didn’t end well for either of them since they had knowledge of copyrighted material being transferred. The moral of the story is that you should respond every time you see your exclusive rights being violated. Perhaps you will catch a copyright infringement before it proliferates to overseas infringers.
Retroactive Copyright Registration
Some infringers see the lack of a copyright notice as an indication that the work is in the public domain. If you recognize infringement taking place but haven’t registered your work – or haven’t received your certificate of registration – you can still take formal and informal actions to remedy the situation. In many cases, simply letting the offender know that your work is copyrighted will settle the issue.
As mentioned earlier, though, you won’t have the option to file copyright litigation until you file a copyright application. Fortunately, this isn’t always the end of the story. You don’t have to wait until receiving your certificate of registration to produce or publish your work. If the U.S. Copyright Office has made a decision on your application, you have the ability to file a lawsuit.
The Copyright Office also provides a grace period in which you can still register for a copyright. Once you publish your creative work, you have a three-month period where you can register and still qualify for statutory damages and attorneys’ fees. This is even for violations that happen within those three months. Additionally, filing within 5 years of publication serves as prima facie evidence in court that you’re the copyright holder.
International Copyright Infringement
It can be difficult to deal with overseas copyright infringement. Fortunately, there is a large list of nations that will protect your copyright even if it’s not registered in their area.
This protection is typically provided through international conventions and treaties. The U.S. government has also at times created copyright rules inside of free trade agreements. It’s important to know that protections and the rules regarding them differ by country. You can view the U.S. Copyright Office’s publication International Copyright Relations of the United States to get nation-specific information. If you get a judgment in the United States against an infringer often it can be enforced in other countries via the Hague Convention.
Avoiding Copyright Infringement
If you’re a creator or want to utilize a copyrighted work, you must be careful to avoid infringement. You could end up losing any profits you make and face statutory damages and attorney’s fees even if you inadvertently violated someone’s copyright. Here are a few steps you can take to avoid this pitfall.
- Proceed with caution: Whenever you want to use a work that wasn’t created by you, it’s imperative to utilize caution. Always assume that you cannot use anything that you did not create. Also, just because there’s no copyright notice doesn’t meant that a work isn’t protected.
- Read up on licenses: In many instances, creators want their work to be shared with the world – even if they’re not the ones sharing it. This is why creative works will often have licenses that dictate how they can be used. Many photos found online, for instance, are available for use with a license.
- Avoid copyright myths: Have you ever heard that you can use short snippets of music without permission? What about the idea that large corporations don’t care if small entities use their work? Did someone mention the idea that you can resell open source material? Unfortunately, all of these are myths.
- Stay within fair use: While the fair use doctrine isn’t a free pass to use copyrighted material, it does offer protection when using material for certain purposes. Instances of teaching, news reporting, satire, research and criticism are all typically protected under fair use.
The Costs of Copyright Infringement
When considering the scope of creative works as a whole, it’s not difficult to fall into the “I’m not hurting anyone” way of thinking. After all, what harm could possibly be done by pulling a few sentences of a book, an image found in a Google search or a few lines of code from another creator’s work? In reality, copyright infringement comes with a huge price tag that nearly everyone pays for.
Intellectual property infringement, including pirated software, counterfeiting, and stolen trade secrets costs the U.S. economy $225-$600 billion per year. By extension the American tax payer is also robbed of revenue due to tax losses linked to works being utilized for free.
Unfortunately, copyright infringers also disincentivize creators from creating. Research has shown that up-and-coming musicians, for instance, have been pushed out of the music industry entirely because they weren’t able to profit from their work. So your next favorite song may never come into existence due to copyright infringement. Copyright infringement has a real-world price, and that’s why everyone benefits when copyright infringements are stopped.
How to Deal with Copyright Infringement
Once you recognize copyright infringement has taken place, there are several avenues you can take to make violations cease. Your first step – and the easiest – is to have a copyright attorney contact the violator and let them know they’re infringing. If you receive a message stating you’re violating a copyright, it’s important to contact a copyright attorney at the earliest opportunity.
This first contact usually comes in the form of a cease and desist letter. In the digital age when many instances of infringement take place online, this can take the form of a Digital Millennium Copyright Act (DMCA) takedown notice.
In many cases, formal contact will result in an infringer ceasing their actions. At this junction, it’s oftentimes appropriate for the copyright owner to request some form of compensation for the misuse. If no agreement can be reach or formal cease and desist requests are ignored, the only option remaining may be filing a copyright infringement lawsuit in court.
Though many copyright infringements are resolved through a cease and desist letter, at times litigation becomes necessary. There are times when an infringing party will leave you no other choice. The infringer may think they haven’t violated your rights, or an infringer could simply believe you won’t enforce your rights.
While you may be tempted to continue negotiating with the infringing party until an agreement is reached, it’s important to remember that there’s a 3-year statute of limitations on claims of copyright infringement. This countdown can begin on the date of the violation rather than the date of discovery. This means that, if you believe copyright litigation may be imminent – it’s important to get the ball rolling quickly.
What to Expect in Copyright Litigation
Since copyright infringement is a federal issue, it can only be settled in federal courts. The judicial system sees no shortage of these cases. Over 3,000 copyright lawsuits are filed each year in the United States. Filing a case, however, is only the beginning. Here’s what to expect from that process:
- Case filed in federal court: Filing a Complaint is the first step in a copyright infringement lawsuit. The defendant will need to be served with the complaint. The defendant will then have 21 days to file a response. If they fail to do so, you can seek a default judgment.
- Potential for dismissal: Defendants can file a motion for dismissal instead of an answer. For this to be successful, a plaintiff must show that the complaint fails to state a claim or that copyright infringement didn’t occur even if all the complainant’s claims are true.
- Discovery: After the pleadings the discovery period begins. Both parties involved can use this time to issue interrogatories, requests for admission, document requests, and to notice depositions on the opposing party. Subpoenas, expert interviews, and witness depositions can also take place during this process.
- Arguments: After discovery, the parties can move for summary judgment. Summary judgment will only be granted if there are no triable issues of material fact.
- Trial: If facts remain in dispute and the case proceeds, copyright litigation will enter the trial phase. Both sides will argue their case in order to establish a factual basis for their claims. Copyright trials typically last 3-6 days.
- Decision: The judge will issue a ruling after hearing all evidence in a case.
While this general process applies in every case, it’s important to note that other issues could arise. A plaintiff may request a temporary restraining order and preliminary injunction while the case is ongoing to at least temporarily stop the alleged copyright infringement while the case is pending. The main point to remember is that every intellectual property case is different.
Defenses During Copyright Litigation
Whether your work is being infringed upon or you’re alleged to have violated a copyright, knowing the following defenses is crucial.
- Copyright invalidity: If it’s proven that a work lacked copyrightable subject material, wasn’t original, or that there is some other defect in the copyright application at issue, the owner’s claim to the copyright may be invalidated entirely.
- Fair use doctrine: If use of copyrighted material falls under the fair use doctrine, a defendant cannot be held liable for using it.
- Independent creation: Defendants can also avoid liability by proving that their work was created independently of the copyrighted material.
- Innocent infringement: Liability can be minimized to a nominal level by showing that copyright infringement was accidental in nature.
- Licensed use: An alleged infringer could prove that they were licensed to use copyrighted material prior to doing so.
- Public domain: If a copyright has expired or the owner of the work affirmatively entered it into the public domain, the alleged infringer may have the right to use the work.
Frivolous Copyright Litigation
If you’re filing a copyright infringement lawsuit, you need to ensure that it’s done so in good faith. If you’re facing claims of copyright infringement, you should also pay attention to whether the claimant has a legitimate case. The parties in a copyright infringement lawsuit must do their due diligence at the outset of a case to investigate the claims. During the litigation, the parties must act reasonably at all times, and if they don’t both the party and the attorneys can be sanctioned by the court.
Of course, this should never deter you from defending your rights in court. If someone is using your copyrighted material without permission, you should utilize every avenue to ensure you protect your creative works.
Copyright Litigation Damages
When it comes to monetary damages, the specifics of the infringing actions will weigh heavily on the eventual decision. In instances where actual damages can be proven, the court will typically be inclined to go that route. Unfortunately, it’s not always easy to show the exact monetary loss experienced by the copyright holder. This is why statutory damages are often awarded.
Typical statutory damages in a copyright infringement lawsuit range from $750 to $30,000 for each instance of infringement. When willful intent can be proven, the copyright owner stands to receive a substantial award. In fact, a single case of infringement in these instances can result in a verdict of $150,000 per infringement. When it can be shown that infringement was accidental, the court may award as little as $200 in statutory damages. The potentially wide ranging awards is why it’s so important to be fully prepared and have an experienced copyright lawyer on your side – regardless of whether you’re in the plaintiff or defendant’s chair.
Copyright Lawyers – Mandour & Associates
It takes years to become an expert in the world of copyright, and with new statutes and judicial precedent being set frequently, it’s easily one of the most complex areas of intellectual property law. This is why you should utilize the assistance of an experienced copyright attorney throughout the process. We have offices throughout southern California in Los Angeles‚ Orange County and San Diego. If you are outside of southern California we are happy to assist. We serve a national and international client base.
At Mandour & Associates, we strive to always provide the absolute best results for our clients. We understand that navigating the world of copyrights can be difficult, so we’re here to help in every way possible.
If you need legal assistance with a copyright issue, contact us for a free consultation today.