The lawyers at Mandour & Associates are copyright litigation attorneys. We handle copyright litigation and copyright infringement matters. We can also assist with copyright registration. For a consultation with a copyright attorney, please contact us.
When a registered copyright has been infringed‚ due to the availability of recovering statutory damages and attorneys fees‚ the injured party may chose to initiate the action by filing a Complaint in federal court. In these instances‚ we are aggressive litigation attorneys and trial lawyers.
The Copyright Litigation Process
Copyright litigation begins with the filing of a Complaint. Upon service of the Complaint‚ in federal court the defendant then must file a responsive pleading which is usually either an Answer or a Motion to Dismiss. Thereafter the parties engage in discovery which includes issuing and responding to discovery such as interrogatories and depositions. The discovery phase of a copyright litigation matter can last several months and can be the most important part of a case. When the discovery phase is complete‚ the case then proceeds toward summary judgment motions and trial.
Your Complaint details the facts of your copyright infringement claim, with reference to the applicable laws and a request for relief. Your copyright lawyer files the Complaint in federal court. Once the defendant is served, they must file a response within 21 days.
If the opportunity exists, the defendant may file a Motion to Dismiss which asks the court to dismiss a portion of or the entire case. This is mostly procedural and shouldn’t be granted if the complaint was filed properly. Otherwise if there are no grounds for immediate dismissal the defendant files an Answer which admits or denies the allegations of the complaint.
By this point the parties have typically discussed settlement options. If a settlement cannot be worked out, the case soon enters the discovery phase. The discovery phase is when both sides can serve discovery requests on the other including interrogatories, requests for admissions, document requests and depositions. If a party fails to properly respond to discovery, a Motion to Compel will be discussed and possibly filed which could lead to sanctions against the non-responding party.
During the discovery phase, each side may depose witnesses. A deposition is when the attorney asks witnesses questions under oath outside of court. If necessary to prove the case, expert witnesses may be retained and deposed. A damages expert is a typical expert witness.
Once discovery is complete, summary judgement motions may be filed. A summary judgment motion can seek judgment as to a certain aspect of the case, or a summary judgment can also seek to win the entire case without the need for trial. Winning on summary judgment is possible if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.
Very few cases ever make it to trial. If a case does go this far, at trial your copyright lawyer will argue the facts of the case and use the evidence gathered during the discovery phase to prove the copyright infringement either does or does not exist.
How to Prove Copyright Infringement
In copyright litigation‚ two frequent issues that arise are whether substantial similarity exists between the two works and whether the alleged infringer had access to the original work. It is plaintiff’s burden to prove both elements. The damages available in copyright litigation include an injunction‚ damages‚ profits of the infringer‚ statutory damages‚ costs‚ and attorney’s fees. Statutory damages and attorney’s fees are usually only available when the copyright at issue was registered prior to the infringement‚ though in the United States a three month grace period may exist.
The ability to recover statutory damages and attorneys fees can be a great benefit because oftentimes in copyright infringement matters actual damages are difficult to prove.
Penalties and Damages
Winning a copyright infringement case as a plaintiff means you’re likely to be awarded damages and among other relief. Under copyright law, the following damages may apply:
Injunction: An injunction is when the court orders the defendant to stop making, reproducing, distributing and performing your copyrighted materials. A temporary injunction is immediate and short-term. The next step is a preliminary injunction, which the court may award if the plaintiff demonstrates irreparable damages and a strong likelihood to win the case. In such instances, it makes sense to stop the infringing activity while the case is pending. At the end of a successful copyright infringement action, you may receive a permanent injunction.
Impounding and Destruction: The Copyright Act states that physical materials that violate a copyright owner’s exclusive rights may be seized and destroyed.
Actual Monetary Damages: When a plaintiff proves that it suffered monetary losses due to the copyright infringement, the court may order the defendant to pay plaintiff the amount lost.
Profits Earned by the Infringer: If the defendant profited from infringing on the copyright, the court may award plaintiff this amount. At times the defendant’s profits may be easier to determine than the plaintiff’s losses.
Statutory Damages and Attorney’s Fees: For post-registration infringements, the plaintiff is eligible for statutory damages and attorney’s fees. Statutory damages typically range from $750 to $30,000. In cases of willful infringement, a plaintiff is entitled to recover up to $150,000 per infringement.
What about Fair Use?
One important defense in a copyright infringement lawsuit may be the fair use doctrine, which is part of the Copyright Act. When the use of copyrighted material meets certain conditions, authorization from the copyright owner is not necessary. There are four factors that impact whether fair use applies.
- How and why was the material used?
Copying another’s work may be permissible if you transform the original material and give it a new meaning or message. This sometimes applies in artistic expressions, like paintings, photographs, videos and sculpture. Critiquing, reviewing and commenting on copyrighted material may also be considered fair use, usually with limited reproduction of the content. An equally common example of fair use is the creation of a parody.
- What type of copyrighted material was used?
Whether the original material is published or non-published and creative or non-fiction bears some weight. Published, factual materials are more acceptable in fair use cases.
- How much of the material was used?
This is a highly subjective factor that relies on both quality and quantity for a determination of fair use. You’re not assured of a fair use application simply because you copied a very tiny portion of someone’s copyrighted material. If reproduced text, audio or media is central to the whole piece, that argues against fair use, no matter the size.
- What effect did this use have on the potential market for the material?
If the market value of the original work is detrimentally impacted, fair use may not apply. This holds true even if the copyright owner hadn’t already established a market for their work. Making money off the fruits of someone else’s labor is generally not favored.
Despite the common belief that fair use must be tied to non-profit uses, this is a misconception. Deciding whether the use of copyrighted material is infringement or fair use can be a complex analysis. Courts make varied determinations on a case-by-case basis. To help educate the public on fair use, the U.S. Copyright Office publishes a searchable Fair Use Index, allowing visitors to review cases and court opinions on copyright infringement and fair use defenses.
Copyright Litigation Attorneys – Mandour & Associates
Mandour & Associates‚ APC is a copyright litigation law firm. Our offices are in southern California in Los Angeles‚ Orange County and San Diego. If you are involved in a copyright litigation matter‚ we recommend that you seek the advice of a copyright attorney at the earliest opportunity.
For our complete litigation philosophy including a list of some of the infringement cases that we have handled in the past‚ please see our intellectual property litigation page.
If you are interested in having us assist you with a copyright litigation matter‚ please contact us.