What are the fair use exemptions to copyright protections?

Certain uses of copyright material may qualify as a “fair use” and, therefore, not a violation of the copyright owner’s rights, but only in certain circumstances.  One example of this is where copyrighted material is used to teach, critique, review, reference, satire, or otherwise use the material in a way that either gives credit to the copyright holder or significantly repurposes the content.  This is, of course, subject to certain limits. Whether a particular use of an author’s work falls within these categories of fair use is determined on a case-by-case basis based on the exact manner of use. 

Do I have to register a copyright for my work to be protected against infringement?

The short answer is “no.” Copyrights are automatically granted the moment an original work is created. You do need to register your work, however, to access the courts for enforcement and to be eligible to collect statutory damages and attorney fees as part of your recovery.

Who owns the Copyright in a work?

Many copyright disputes involve competing claims of ownership of a copyright. The attorneys at Barshay Sanders can help you make sure you own or have a right to use the copyrighted works such as photographs, illustrations, designs, software, or other items that your business may purchase, commission from freelancers, use or supply to others. Generally, the person who actually creates a work owns its copyright. Such rights can arise even if the work was commissioned and the creator was paid to create it. However, there are exceptions. As a general matter, employers own the copyrights in the works that their employees create within the scope of their employment. Special rules are implicated to determine whether one qualifies as an “employee” for this purpose. In addition, with respect to a limited number of types of works – such as encyclopedias, tests, audiovisual works, and compilations – the party that commissions a non-employee (e.g., freelancer) to create the work pursuant to a written work-for-hire agreement will be considered the “author” and owner of the copyright. Ownership of a copyright can also be acquired through a written assignment from the author.

How long does Copyright protection last?

For most works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright term is 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. The attorneys at Barshay Sanders can help you to determine the length of copyright protection for works that predate 1978.

What does it mean to register a copyright?

Copyrights are registered with the United States Copyright Office of the Library of Congress.  Registration is accomplished by submitting an application to the Registrar of Copyrights along with a modest fee and a “deposit” of the work being registered. The particular application form and the deposit requirements vary depending on the type of work you are seeking to register. Registration is not required to own a copyright. However, the cost of registering a copyright is negligible when compared with the benefits from registration. In most cases, registration is a prerequisite to filing a lawsuit to enforce the copyright. Furthermore, with some exceptions, certain infringement remedies, such as statutory damages and attorney’s fees, are only available if the copyright is registered before the infringement begins. The registration fee is often modest.

How do I know if a Copyright has been Infringed?

A copyright is infringed when someone violates any one of the exclusive rights of the copyright owner; for example, using a photograph in an ad campaign or on a commercial website without the photographer’s permission, installing software on more than one computer that is licensed only for use on a single computer, or creating a derivative work (such as a sequel) based on a copyrighted work. Any lawsuit asserting claims of copyright infringement are encouraged to be brought in federal court. Remedies include injunctive relief and monetary damages.

What are the Remedies for Copyright Infringement?

Most people who have been the victim of copyright infringement simply want the infringing work removed or destroyed, but you are entitled to seek damages as well. If you are a victim of copyright infringement, you have the right to seek the following penalties against the person violating your exclusive copyrights through copyright courts or within the jurisdiction where the infringement occurred:

  • Monetary damages for the infringement between $200 and $150,000;
  • Transfer of all profits the infringing party made off your work;
  • Reimbursement of all attorney’s fees and court costs associated with pursuing your copyright claim;
  • Injunction against the creation and use of the infringing works;
  • Impoundment of infringing works; and
  • Jail time in the most extreme copyright infringement cases.

You can discuss which specific remedies you wish to pursue with an intellectual property lawyer. In some cases, you may also be able to simply issue a cease and desist letter if you only want the infringing material taken down. 

Factors We Consider for Copyright Infringement Contingency Litigation

Copyright infringement claims present a challenge to an attorney who is asked to accept the case on a contingency basis.  That is because proving damages for copyright infringement can be a daunting task.  That is one reason why the Copyright Act makes statutory damages available as an alternative to actual damages.

When an attorney takes a copyright case on a contingency basis, he is investing his time, energy and resources in the copyright claim.  Any investment by the lawyer is time and money he could be spending on other cases. Therefore, it is often the case that many of the determining factors for selecting a case revolve around potential financial recovery.

There are several factors that the attorneys at Barshay Sanders look at when we evaluate a copyright infringement case to determine whether it is appropriate to take on a contingency basis.

  1. The value of the copyrighted work.
  2. The damages suffered by the copyright holder.
  3. The identity of the infringer and profits the infringer received from the infringement.
  4. The extent and willfulness of the infringement.
  5. Whether a copyright was registered before the infringement or within 3 months of first publication.
  6. Defenses to infringement like fair use, statute of limitations, or DMCA safe harbor.

1. The value of the copyrighted work.

Copyright holders use their creative and mental energy to create art – whether that art takes the form of photographs, film, video, illustrations, literature, journalism, software, or otherwise.  It is therefore natural for those blessed with creative skills to be protective of their works and value them highly. However, placing an actual value on creative works is often difficult, it not impossible. To this end, you must be mindful of the dual aims of an infringement lawsuit – that is to stop the infringement, to recover money, or both.  For an infringement suit to be viable to take on contingency, there must be a likelihood of a monetary recovery.  Like you, we need to earn a living.  Without a financial recovery at the end of the case it does not make sense for us to take a copyright case on contingency.

2. The damages suffered by the copyright holder.

There are many ways to measure damages for copyright infringement. Sometimes copyright owners are deprived of income or royalties when their works are stolen and used without authorization.

The attorneys at Barshay Sanders will analyze your claims for financial recovery to determine whether they will be recognized by a court or jury.  The amount of damages will be a factor to both the copyright owner and the firm and will be discussed in any case we decide to accept on a contingency basis.

3. The profits received from the infringement by the infringer.

The copyright act permits a plaintiff to recover any money earned by the infringer from the infringement as part of the copyright holder’s damages.  We look at business earned by the infringer from exploiting your copyrights.  In addition, we try to determine as best we can whether the infringer will be able to pay a judgment for damages.  In some instances, the infringer may have insurance available to pay a copyright infringement claim, which will also be discussed.

4. The extent and willfulness of the infringement.

Depending upon the nature of the copyrighted work at issue, making a single copy of a work may not be significant enough to warrant a lawsuit.  That does not mean that the infringement does not matter or should be stopped, it does.  That said, it may be determined that it does not make economic sense to pursue a claim.  Similarly, whether the infringement was innocent or malicious can be an important factor, especially in evaluating the range of statutory damages available.  An award of statutory damages where the infringement is proven to be willful can be up to five times that of a statutory damages award where the infringement was innocent.

5. Whether a copyright was registered before the infringement or within 3 months of first publication.

Because proving actual damages for copyright infringement is often difficult, the availability of statutory damages and/or attorneys’ fees can often be the deciding factor in deciding whether an infringement case can be a contingency case.  In order to recover statutory damages and attorneys’ fees, the copyright must be registered with the Register of Copyrights prior to the infringement or within three months of first publication.  The same rule applies to foreign works even though registration is not required to file suit in the US for infringement. So, register your copyrights!

6. Defenses to infringement such as fair use, statute of limitations, or DMCA safe harbor.

Depending upon the nature of the work and the allegedly infringing use, as well as the identity of the alleged infringer, what you think is infringement may or may not be.  Fair use is codified in the Copyright Act and can be an absolute defense to an infringement suit. Furthermore, the statute of limitations for infringement is three years from the date of discovery.  So, act promptly! Other defenses, such as whether the infringer is entitled to the benefit of the DMCA safe harbor provisions, must also be evaluated.

Need more information? Read more about how Barshay Sanders protects Copyright Infringement.