San Diego Copyright Lawyer
Mandour & Associates is a San Diego intellectual property law firm assisting businesses with issues related to copyrights, trademarks, and patents. The following is a brief overview of copyright related issues. To discuss your specific situation with a copyright lawyer, please do not hesitate to contact us directly.
Copyright law is a critical intellectual property protection for creators of artistic works. However, obtaining copyright protection will not automatically prevent others from infringing on your ownership rights. You should always stay aware of possible infringement and seek qualified legal assistance to take necessary action to stop the infringement.
Copyright Registration for San Diego Businesses
You can register a copyright with the U.S. Copyright Office for many creative works, including:
- Websites, including graphics and text
- Computer programs
- Artwork including photographs
When Does Copyright Protection Begin?
Misunderstandings exist regarding when a copyright is protected. Copyright protection begins the moment that the work is created. That is, the copyright of an initial work belongs to the person who developed it.
A work is “published” when it is seen or heard for the first time. It’s as simple as it sounds. Even more so, under the 1976 Copyright Act, it’s not essential that a publication is made in order to get a federal copyright.
As soon as an original creative work becomes tangible, you own the copyright to that work. This ownership is automatic without any affirmative steps on your part, and you can affix a copyright notice whenever you publish your work. The copyright notice should have the copyright word or symbol along with the year of creation and the owner. This notice informs others that they cannot use or reproduce your work without the proper authority from you.
While registering your copyright with the U.S. Copyright Office is not necessary for intellectual property protections, doing so can provide additional important benefits for copyright owners. Formally registering the copyright creates a legal presumption that you own the copyright and expresses to others that you are serious about protecting your work. You will also have additional legal tools to stop infringement, such as the right to seek damages and attorney’s fees from an infringer. Having a registered copyright can deter infringers and strengthen your position in a legal action for copyright infringement.
Copyright Registration Rights and Responsibilities
Once a copyright is registered, it protects the work of art for the life span of the author plus 70 years. Owning a copyright means that you have the exclusive right to utilize it including the right to:
- Profit from your work and make derivative products (prints, t-shirts, recordings)
- Perform or Display your work
- Make copies of your work
A copyright holder should do regular policing and searches to ensure that the copyright is being respected, especially online where copying can become widespread.
Copyright Infringement Lawyers in San Diego
It can be disturbing to learn that someone else is using, reproducing, or distributing your creative work without your permission. Having a registered copyright does not necessarily stop misappropriation of your intellectual property, but it does give you the right to take legal action should you learn that someone is utilizing your work. When you can demonstrate that you own a copyright and that someone has engaged in the unauthorized use or copying of your original work, you can bring a legal action for copyright infringement.
What Constitutes Copyright Infringement?
To prove copyright infringement, you may either provide concrete evidence that the party copied your work or circumstantial evidence that: (i) the party had access to your copyright before they reproduced their own work and (ii) the works at issue are substantially similar.
A critical aspect of many copyright infringement actions is proving that the misappropriated work was substantially similar to the original work. While it does not have to be an exact match in every way, you must sufficiently demonstrate that an average person would consider the two works to have the same look and feel. An example of this is two songs that may have different lyrics but the same chord progression, meter, and other components that cause listeners to be reminded of the first-released song. Substantial similarity is determined on a case-by-case basis, and you need an experienced copyright lawyer who understands how to prove this aspect of your claim.
A copyright attorney will examine your copyright and the misappropriated work and evaluate whether you have a valid claim for copyright infringement. If so, your copyright attorney will determine the best course of action in your situation. Rushing to litigation may not be the best move in an infringement case.
Often, an infringement action begins by sending the infringer a cease and desist letter. This letter notifies them that you believe they have infringed on your copyright and asks that the infringing activity stop. While this letter does not have to be threatening, having it sent by an aggressive copyright attorney sends the message that you are prepared to escalate the matter and file a lawsuit if needed.
In many situations, a cease and desist letter may be the first indication that the infringer has done something wrong. They may not understand copyright protections or realize that their work is too substantially similar to yours. Often, they will stop the infringement right away to prevent any further trouble. If they refuse to stop, however, the letter will at least serve as evidence that you provided them notice of the infringement and tried to resolve the matter out of court. The next step can be copyright litigation.
Copyright Litigation Attorneys in San Diego
Copyright owners often initiate litigation with two goals in mind:
- To seek a court order for the infringement to stop
- To seek damages
First and foremost, a successful infringement action will result in the court issuing an order that the infringer must stop misappropriating the copyright. If the infringer fails to abide by the injunction, they can face civil penalties including time in jail if held in contempt of court.
If a copyright owner is experiencing irreparable damage and is seeking an immediate order that stops the infringement, at the outset of a case the plaintiff can seek a temporary restraining order and preliminary injunction.
Temporary Restraining Order
If issued, a temporary restraining order will be executed by a judge without giving the accused party a lot of notice. A temporary restraining order will prevent continuing harm until a more thorough hearing can be held. Thus a temporary restraining order has a limited period and is typically issued with a hearing date for a preliminary injuction.
A preliminary injunction is similar to a restraining order but will be in place for a longer period, at times they remain in place until the lawsuit is over.
Actual Damages or Statutory Damages?
When it comes to seeking damages, there are two types which a plaintiff may choose – actual damages and statutory damages. Actual damages include losses that a copyright owner experienced as a result of the infringement, as well as profits that the infringer received that are attributable to the infringement. In some cases, actual damages can be quite substantial. For example, if someone uses your work in a major marketing campaign, it may help them achieve significant sales. When a major musical artist releases a song that infringes on an existing copyright, they can make millions of dollars in a short period of time. In these cases, seeking actual damages can result in a substantial settlement or award.
In other cases, there might be little to no actual damages to account for at the time of the filing. However, this does not change the importance of stopping the infringement. When damages may be limited or difficult to prove, federal law allows a plaintiff to seek statutory damages instead of actual damages as long as the copyright has been properly registered.
17 U.S. Code § 504 sets out the possible amounts for statutory copyright damages the court may award, as follows:
- If the infringer had no knowledge they were infringing, statutory damages will be a minimum of $200
- In most cases, statutory damages will be between $750 and $30,000
- If you can prove that the infringement was “willful,” statutory damages can go up to $150,000
In addition to statutory damages, a prevailing party in copyright litigation may also be able to recover attorney’s fees. Often in copyright litigation the potential recovery of attorney’s fees becomes a large weapon in the case and can greatly incentivize a party to settle rather than litigate.
Mandour & Associates – San Diego Copyright Attorneys
When you own a copyright, you deserve to maintain control over your intellectual property and decide how it can be used. In the event of an infringement, our legal team will work to aggressively protect your intellectual property rights. We understand copyright litigation from all perspectives, and we know how to defend against infringement claims to prevent unnecessary liability and damages for our clients.
If you have a copyright issue and need assistance, please do not hesitate to contact us today.