A copyright injunction is one of the most important tools available in the event of a copyright infringement. The ability of these orders to end infringement has the force of federal courts behind them.
Copyright Infringement Remedies
Creative works gain copyright protection as soon as they’re put into a fixed medium – including digital formats. While injunctions are significant in their ability to quickly end ongoing violations, seeking one isn’t always the best course of action. Contemplate each of the following options when considering how to respond to copyright infringement.
If you’re unable to avoid copyright litigation, an injunction is one of the legal remedies available to you through the courts. If a judge grants you injunctive relief, the defendant must immediately cease their infringing behaviors. This could include anything from selling t-shirts featuring a work of art to reproducing text in an online community.
There are two forms of injunctions available as copyright infringement remedies. Preliminary (temporary) and permanent injunctions. These can require defendants to end behavior (e.g. selling an item) or engage in behavior (e.g. recall licenses to use). The main differences between the two is when they are issued and their duration.
Copyright Cease and Desist Letters
Over 97 percent of legal disputes never end up in the court system, and this is partially attributable to the effectiveness of copyright cease and desist letters. These notices alert individuals engaged in copyright infringement that their behavior is a violation of copyright laws. It essentially lets them know that their actions haven’t gone unnoticed, and that you will pursue legal remedies if necessary.
This is usually the best place to start for many reasons. The most significant benefit is that you could potentially avoid costly litigation. Accidental infringers often simply need to be alerted that they’re misusing your property, and willful violators are likely to cease their activities for fear of litigation. In either case, this is an effective tool for ending infringement. If the letter comes from a copyright lawyer that litigates, it will be taken very seriously.
The letter should include information that specifies the recipient’s infringing actions while simultaneously removing their ability to claim that future actions are accidental. This is important since any eventual court award will be increased if willful intent is proven. The maximum court award for an instance of infringement is $30,000, but if the courts believe infringing actions were intentional, this goes up to $150,000. Copyright cease and desist letters include the following information:
- Contact information for all involved parties.
- Specific copyright you’re claiming ownership over.
- Proof that you’re the owner (e.g. registration numbers, publisher, publication date).
- Dates and circumstances when infringing activities occurred.
- A demand that copyright infringement end immediately and never again resume (i.e. cease & desist).
- Further legal action that will occur if actions continue.
- The deadline for a response – typically 10 days.
In many cases, when we send a cease and desist letter it ends the issue. If the recipient disagrees, that is usually the time for further legal action. In order to file a lawsuit, though, you’ll need to have completed copyright registration.
Early in 2019, the Supreme Court unanimously affirmed that copyright owners must registered a copyright with the U.S. Copyright Office prior to filing a lawsuit. This should not discourage you if your works are currently unregistered because we are able to quickly register a copyright.
Temporary Restraining Orders
Seeking a copyright injunction takes time. That’s because a fully briefed court hearing is necessary prior to its approval. This means the defendant must be informed of the action against them so they have a full opportunity to contest the injunction. In some instances, though, courts will grant temporary restraining orders (TROs). This is a short-term stopgap measure that can end infringement prior to a hearing.
A TRO has a heightened standard for relief and reduced notice requirements on the defendant. These orders only last long enough for a hearing to decide whether a preliminary injunction should be issued. As with any form of injunction, for a TRO to issue a plaintiff must prove that it is likely to prevail in the case and without a TRO the plaintiff will endure immediate and irreparable loss.
Whenever a TRO is granted, it must be served to the opposing party. These typically expire within two weeks, but a judge can extend the order if necessary. These orders can immediately stop distribution of literary works (i.e. 45 percent of all copyright registration claims), remove availability of file sharing programs, stop the online sale of items and a host of other remedies. Unless a hearing decides otherwise, though, these restrictions will end and provide no further protection.
Once a hearing has been set, courts will decide whether to grant a preliminary injunction. If this is approved, the defendant will have to abide by the ruling until the case is decided. The issuance of such an injunction occurs prior to a trial – before all evidence has been presented – and is thus less frequently granted than their permanent counterparts.
A mechanism sometimes used by the courts to ensure fairness is the requirement of a bond from the party requesting this temporary injunction. This occurs to deal with the possibility of the defendant prevailing. If it’s decided that the initial injunction shouldn’t have been granted, this bond could cover damages experienced due to the wrongful order. At times the bond can be so large that a plaintiff is not willing to seek an injunction.
The following elements will be considered when deciding upon the issuance of a preliminary injunction:
- Likelihood of the plaintiff prevailing based on merits.
- Showing that irreparable harm is likely to occur if temporary injunction isn’t granted.
- The potential injury to plaintiff caused by no preliminary injunction must outweigh the potential damage to the opposing party if the preliminary injunction issues (i.e. balance of hardships).
- The temporary move wouldn’t disservice the public interest.
The likelihood of success is often viewed as the most important of these issues. Obviously the court doesn’t want to intervene and force a party to stop doing something unless they are reasonably certain they are making the correct decision.
Copyright Injunction Elements
The requirements for permanent copyright injunction elements are very similar to preliminary orders. When violations are found to have occurred, the court may decide to make the preliminary injunction permanent. Even when copyright infringement is proven, though, there’s no guarantee that this will happen.
Consider the following required elements:
- Irreparable injury has been suffered by the plaintiff.
- Legal remedies – such as financial damages – cannot provide adequate compensation.
- The balance of hardships weighs towards the plaintiff and requires equitable remedies.
- The public interest would not be hurt by a permanent injunction.
The balance of hardships is given more consideration before a permanent injunction is granted. If the defendant is likely to face unnecessarily harsh damages due to such an order, other legal remedies may be considered. This is especially true in cases where good faith actions are taken into account. If bad faith acts are believed to have occurred, it’s unlikely that any leniency will be granted.
Remedies Outside of Injunctions
Monetary damages are the main legal remedy outside of injunctions. Monetary damages can be awarded even when such an injunction isn’t granted. While statutory damages could be as high as $150,000 per violation if infringement is proven to be willful, these court awards could be as little as $750 per work if willful misuse isn’t demonstrated.
You may also be able to recover the defendant’s profits and actual damages if the court finds in your favor. If you can prove that you lost a specified amount due to misuse hindering your ability to profit, the court could calculate your award based on these facts. Without such evidence, though, you may still be able to receive all the profits the defendant gained from your work.
In order to sue in federal court and receive monetary awards along with court costs and attorneys’ fees, though, you must be federally registered. Copyright registration must occur within three months of publication to be able to secure statutory damages and attorneys fees. For more information, see our copyright litigation page.
DMCA Takedown Notice
One of the most effective and least costly copyright infringement remedies available is the Digital Millennium Copyright Act (DMCA). Sending notices under this statute can result in the quick removal of infringing material online. These can be sent to websites or Internet Service Providers (ISP) hosting the content. The recipient of the notice typically must act quickly in order to avoid shared liability.
The number of DMCA notices received by websites has increased exponentially over the years. In 2008, for instance, Google only received 62 takedown requests. This increased to 441,370 in just four years. By 2016, the company was handling about 2 million every day. Online platforms take these reports very seriously, so they should be considered as an alternative to injunctions.
If you have a copyright infringement issue related to a copyright injunction, please contact us today for a free consultation.