Copyright Infringement

What is Copyright?

Copyright protects a wide array of creative expressions, including visual works, music compositions, architectural works, source code and software, literary works, and sculptures. Businesses and individuals, such as artists, musicians, photographers, programmers, and others, all regularly create material that should be protected by copyright.

Why Protect Copyright?

Pursuing those who infringe copyright and helping our clients avoid copyright infringement are the twin aims of the Barshay Sanders copyright lawyers. Many of our clients have valuable, creative works that are infringed, and often find themselves in need of seeking recourse through the legal system to protect their rights. The Copyright Act provides a full range of remedies depending upon the nature of the infringement, from actual damages to statutory damages of varying amounts.  The Copyright Act not only allows for injunctive relief to stop an unauthorized user from infringing copyright but may sometimes allow for the recovery of attorneys’ fees. Not all remedies are automatically available, however, and so we counsel our clients regularly on matters ranging from how to protect their creative works in a legally proper manner, but to avail themselves of all the Copyright Act remedies.

The internet realm has created an abundance of when it comes to copyright infringement. This type of infringement has become rampant due to the ease with which people can copy and reproduce others’ works with a short series of simple mouse clicks. Modern internet businesses face a myriad of copyright issues under the Digital Millennium Copyright Act (“DMCA”), which range from the simple to the complex. Under the DMCA, certain businesses often seek toavail themselves of a “safe harbor”from copyright liability arising from the acts of their users.Yet, such immunityoften dependson the businesses’ relationship with the user, amongst other issues. This protection is not unlimited. Modern internet businesses may face liability and lose the copyright safe harbor, and, depending on the circumstances, may face liability for the copyright infringements that occur on their website(s).The lawyers at Barshay Sanders have litigated the DMCA and its contours extensively and, so, can prosecute or defend actions that address the scope of the DMCA that evade many other attorneys who do not possess a similar degree of skill and experience. We have also counseled numerous clients through the unsettled area of fair use issues in the digital age, and the challenges posed by such recent legislation as the DMCA.

Our Team is Dedicated to One Goal: Yours

The Barshay Sanders team brings together attorneys who share years of experience in navigating high-profile intellectual property and entertainment disputes and transactions, who sharea substantive knowledge that can only be gleaned through litigating cases in all Judicial Districts throughout the Country; developing the oral advocacy skills of deft communicators and negotiators; and the technical expertise required to explain the issues in language that can be readily understood.

We know that all clients are different, and should be taken care of based on their specific needs and goals.  For some, traditional hourly billing makes the most sense, but, even then, a failure to review those needs and avoid excessive staffing or engaging in needless discovery disputes do not serve the client. Other clients may prefer the cost-certainty of a contingency or flat-fee billing arrangement. Flexible and nimble, the attorneys at Barshay Sanders are sensitive to all these needs and strive to provide the specialized legal services needed by all of our clients, whether they be large publicly-traded companies, mid-size businesses, or individual inventors and creators.

Our lawyers have successfully litigated copyright licensing-related disputes for entertainment, media, and hi-tech clients, and have filed briefs as amicus curiae in copyright infringement suits not involving our direct clients. Our copyright experience runs the full gamut of protected works, from such traditional subject matter as music, literature, art, photography, film, and television to such novel subject matter as computer object and source code, web pages, and architecture.

We handle all facets of intellectual property law.

Litigation: Do you believe that someone has taken your intellectual property or is accusing you of improperly using their intellectual property? Patent, copyright, trademark, trade secrets, idea theft and right of publicity litigation is what we do.

Ideas & Inventions: Do you have an idea or a new creation that you want to protect? Do you no know where to turn?  Protecting your new, novel ideas within the law of intellectual property is what we do. Whether your needs involve copyright or trademark registration or prosecution, the lawyers at Barshay Sanders are qualified to serve your needs.

Deals, Licensing & Counseling: Do you have licensing needs? A deal you need to structure or need intellectual property advice? We do it all, from technology counseling, start-up structures, trademark or copyright licensing, film, television, music and new media production, and distribution and talent representation.

How do we Protect Copyright Infringement?

A copyright owner owns a bundle of rights associated with his or her works. When one of these rights is used without the express consent of the copyright owner, it is considered an infringementof copyright or a copyright violation. The rights most often at issue are:

  • Right of Reproduction. You may reproduce your work in any fixed form. An example of copyright infringement is if someone copies a photograph or image you have created and uses or attempts to sell it without your permission.
  • Right of Distribution. You may distribute your work by selling it, leasing it, displaying it in public, or lending it. An example of copyright infringement is if someone sells or makes available unlicensed copies of your poetry.
  • Right to Derivative Works. You may modify your work or create a new work based on the work. An example of copyright infringement is if someone films a movie based on your book without your permission.
  • Right of Public Display. You may show your work (or a copy of your work) directly to the public. This includes putting copyrighted work on the internet. A frequent example of copyright infringement is when someone uploads your photography to a website without your permission.
  • Right of Public Performance. You may recite, play, dance, or act out your work. An example of copyright infringement is if you write a play and another person produces that play without permission.

There are, of course, limits and exceptions to these rights. Generally, someone can use your works if it qualifies for one or more of the fair use exceptions to copyright, and, depending on the circumstances, may use your work if it is in public domain (that is, no longer under copyright protection).

DMCA Takedown Remedies

If your material is used online without your permission, known as internet piracy or digital piracy, you may request that the infringer remove the material by sending a “takedown notice” under the Digital Millennium Copyright Act.This is likely the best remedy if you solely wish to have the content removed. You need only follow the proper format for issuing a Takedown Notice to the website host, notifying it that it has published content in violation of copyright protection act or not in accordance with your wishes as the copyright owner. A formal copyright is not necessary to take advantage of DMCA takedown protections.

Copyright Registration Protection

Copyright protection extends to digital website content such as graphics, text, photos, music, and video files.  If your business utilizes a website, it almost certainly owns copyrightable content, and should be protected. Although copyright protection technically exists as soon as a creative work is created, there are various advantages when you secure a formal registrationFor example, without a federal registration, it is more difficult to enforce your rights to stop acts of infringement, and a federal registration also avoids disputes about authorship by providing evidence of the date of creation and ownership. A federal registration is therefore often a critical tool in stopping infringement, maintaining control of a work, and avoiding costly legal disputes.

Your creative works are valuable assets, and should beduly protected with an actual copyright registration. Future possible legal disputes will be far more costly and time-consuming than any fees you may pay to register a federal copyright.

Barshay Sanders experienced copyright registration lawyers have filed copyright applications for a wide variety of clients, including photographers, software developers, writers, musicians, and visual artists. We have also prosecuted copyright applications and requests for reconsideration of application refusals, assisted our clients with complex licensing arrangements, and resolved a number of complicated copyright disputes. Copyright owners are entitled by law to recover statutory damages, and they become eligible to recover attorney fees against infringers. Statutory damages are awarded by the courts and do not require the copyright owner to prove any specific loss.

To obtain the maximum benefits of the U.S. Copyright laws, you must file a copyright application prior to publication (before the work is made available to the public) or, in some cases, within three months of publication.  It is critical to register your unique content with the U.S. Copyright Office immediately, particularly if such content is to be posted by you or another to the Internet.  This will act as a deterrent to your competitors from stealing your intellectual property for their own use.  Timely registration provides for the right to recover substantial statutory damages of up to $150,000 for each instance of willful infringement and attorneys’ fees in the event litigation is necessary to enforce your rights and protect your Internet copyright assets.  Failure to timely register a copyright pertaining to Internet content will preclude you from taking advantage of these significant remedies.  Although your copyright exists from the moment you create your work, registration is a prerequisite to enforcing that right through copyright infringement litigation.

Copyright law protects the creative works of expression such as music, the written word, photographs, and paintings, but it also protects creations such as software code, engineering designs, architectural plans, and more. Copyright protections include the exclusive rights to reproduce, distribute publicly perform or display such works, and the right to create derivative works.

Copyright protection is vital to the growth of the entertainment and publishing industries. A company’s copyright portfolio can actually be far more valuable than its fixed assets, and infringement can affect artists and publishers alike. Barshay Sanders’ copyright infringement lawyers have litigated numerous copyright infringement matters on behalf of both plaintiffs and defendants.

Our copyright infringement litigation team continuously re-evaluates our clients’ risks and benefits during the course of litigation, re-assessing settlement and litigation strategies on an ongoing basis as new facts are discovered. In the situation of online infringement, stopping the dissemination of a work is often as important or more important than financial remedies, and we often utilize takedown notices and §512 subpoenas to get infringing content off the internet before any lawsuit is even filed.

Our team of copyright infringement attorneys have significant experience litigating and resolving copyright disputes in a number of contexts and industries, and on behalf of both plaintiffs and defendants. We bring that experience to the table through all stages of the dispute resolution process, from initial case evaluation through settlement efforts and ultimately trial.

Barshay Sanders can help if you are a copyright owner attempting to enforce your rights, if your image or likeness has been misappropriated for the commercial benefit of another, or if you are an individual or business accused of infringing the copyright rights of others. Please contact us for a free consultation with an experienced Internet Copyright Attorney to discuss your particular Internet-based copyright infringement legal issue, and how we can assist you by submitting your matter using our Free Online Case Submission Form, calling us for a free consultation, or sending us an e-mail to info@barshaysanders.com.

Copyright FAQ’s

 

Copyright in General

 

What is copyright?

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works, and gives the copyright holder (often the author or publisher) the right to control certain uses of works that are protected by copyright. It also gives users the right to make certain uses of those works without permission.

 

How is a copyright different from a patent or a trademark?

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, but, the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

 

What does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. In the United States, copyright protects only “original works of authorship fixed in any tangible medium of expression.” To be eligible for copyright protection, a work must be an original work of authorship, placed in a fixed, tangible medium of expression. Your work becomes protected the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.Publication is not necessary for copyright protection.For that reason, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.These requirements are limited. For example, US copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties.

 

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation.

 

I’ve heard about a “poor man’s copyright.” What is it?

The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

 

Is my copyright good in other countries?

The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country.

 

What Does Copyright Protect?

 

Can I copyright my website?

The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.

 

Can I copyright my domain name?

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers.

 

How do I protect my recipe?

A mere listing of ingredients is not protected under copyright law, and attaches on to the “originality” requirement of a protectable copyright. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. If you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

 

Can I copyright the name of my band?

No. Names are not protected by copyright law. Some names may be protected under trademark law. The same reasoning applies to the inability to copyright names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.

 

How do I protect my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

 

Can I register a diary I found in my grandmother’s attic?

You can register copyright in the diary within a certain duration only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

 

Does copyright protect architecture?

Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection.

 

Can I get a star named after me and claim copyright to it?

No. Names are not protected by copyright. Publishers of works such as a star registry may register a claim to copyright in the text of the volume [or book] containing the names the registry has assigned to stars, and perhaps the compilation of data; but such a registration would not extend protection to any of the individual star names appearing therein. Copyright registration of such a volume of star names does not confer any official or governmental status on any of the star names included in the volume. For further information on copyright protection and names, see Circular 33, Works Not Protected by Copyright

Who Can Register?

Can foreigners register their works in the United States?

Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office.

 

Can a minor claim copyright?

Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors.

 

Can I register a diary I found in my grandmother’s attic?

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

 

How do I know when a submission for registration is received by the Copyright Office?

If you apply for copyright registration online, you will receive email confirmations of completed steps in the application process. Otherwise, the Copyright Office does not provide a confirmation of receipt.

 

What are the rights of a copyright holder?

Economic rights form the bulk of a copyright holder’s rights under US law. They stand in contrast to moral rights, which are less recognized under US law.

In US law, the economic rights of copyright holders are listed in §106 of the Copyright Act, stating:Subject to §107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

•  to reproduce the copyrighted work in copies or phonorecords;

•  to prepare derivative works based upon the copyrighted work;

•   to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

•  in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

•  in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

• in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

How do I provide a copyright notice on my work?

Under current US law, you do not have to provide a copyright notice on your work to receive copyright protection. However, if you are making your work publicly available, you may want to. Putting a copyright notice (©), the year of publication, and the name of the copyright holder) on a work tells the rest of the world that the work is protected by copyright. If the copyright holder later sues someone for infringing her copyright in the work, she can point to the notice to show that the defendant is not an “innocent infringer,” which can lead to higher damages. A copyright notice also lets others know whom to contact if they would like a license to use the work.

 

How long does the registration process take, and when will I receive my certificate?

The time the Copyright Office requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current Processing Timesmay last for 6-9 months.

 

Does copyright law permit my use?

Copyright law gives the copyright holder (often the author or publisher) the right to control certain uses of works protected by copyright. If the work you want to use is protected by copyright, using it without permission could implicate the rights of the copyright holder. However, your use might still be permitted if it falls within a user’s right. Finally, even when copyright law permits your use, contract law may prohibit it.First, consider whether any contractual terms limit your ability to use the work. You must obey any terms that you agreed to in order to gain access to a copy of the work. This is common with software, electronic resources, and materials in archival or special collections.Second, consider whether the work is copyrightable. In the United States, copyright does not protect ideas, facts, methods of operation, or the like. It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties.Third, consider whether the work is in the public domain. Works that are in the public domain may be used without permission. In general, the older a work is, the more likely it is to be in the public domain. After that, consider whether there is an existing license (such as a Creative Commons license) granted by the work’s rightsholder that would permit your use.Then,consider the various user’s rights. Fair use is the broadest of these rights and is a good place to start. If you plan to publish your work, do you know if your publisher will permit you to rely on fair use for third-party content? Many do not, but if yours does (or if you will be distributing the work yourself), you’ll want to analyze whether your use of the work would qualify. Whether your use is fair will depend on the four fair use factors. There are no general limits on the amount of a work that you can use under fair use — in some cases, it is fair use to use an entire work; in other cases, it is not fair use to use even a small portion of the work. Fair use favors academic and educational uses, but not all such uses are fair. If you do not believe your use to be fair, consider whether it falls under any of the specific user’s rights, such as the one for using works during face-to-face teaching.Lastly, if your planned use implicates one of the rights of copyright holders and does not fall under a user’s right, you will need to get permission from the copyright holder or change your plans.

 

How do I register my copyright?

Under current US law, you do not have to register your work to receive copyright protection. You may want to register it anyway, because copyright registration comes with certain legal benefits. If the work is registered within three (3) months of its publication date, or before a particular infringement occurs, the copyright holder can recover statutory damages (monetary awards that need not be connected to actual harm suffered by the copyright holder) and attorney’s fees if she is successful in an infringement suit. Also, registration is required before the author can bring a lawsuit about the use of her work. However, despite these benefits, many works are never registered because registration takes time and money.

 

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 Sanderscan help you to determine the length of copyright protection for works that predate 1978.

 

Who is the initial copyright holder?

Under US law, the initial copyright holder is the author of the work. In most cases, copyright law treats the creator(s) of the work as the author(s). If someone creates a work as an employee (or in certain cases, as a contractor), that person’s employer is considered the author of the work.

If two or more people make copyrightable contributions to a work with the intent that their contributions be merged into one whole, they are joint authors under US law. As joint authors, they hold equal shares of the copyright from the time the work is created. A joint rightsholder owes her co-rightsholders their shares of the profits from uses or licenses she makes of the work. Joint rightsholders can grant non-exclusive licenses unilaterally. To transfer the copyright or grant an exclusive license, all joint rightsholders must agree.

In the case of a “work made for hire,” the author under copyright law is the person who employed or commissioned the creator of the work, rather than the creator of the work herself. There are two ways a work can be a work made for hire. A“work made for hire”exists if (i) the work is created by an employee who is acting within the scope of her employment, or (ii)if it is commissioned “for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas,” and the commissioner and the creator of the work agreed in writing that it would be treated as a work made for hire. For example, if someone who works at an advertising agency creates an advertisement at work, that advertisement is a work made for hire. Second, a work is a work made for hire

 

Can someone other than the author become the copyright holder?

It is possible to transfer or assign copyright. In the frequent cases of publishing agreements, the publisher holds the copyright to a work, and not the author. A valid copyright transfer requires a signed written agreement. You can transfer or assign all of your copyrights or only certain parts. For example, you could assign the right to distribute your book in the United States to one publisher and the right to distribute it in Europe and North Africa to another publisher.

Copyright Infringement

How is plagiarism related to copyright?

Copyright infringement and plagiarism are related,yetdistinct, concepts. Plagiarism is using the work of another without attribution. Copyright infringement is the reproduction, modification, distribution, public performance, or public display of a copyrighted work without the permission of the rightsholder that does not fall under fair use or another exception to copyright law. It is possible to plagiarize even when copyright allows you to use the work. Similarly, it is possible to infringe copyright even when you have given careful attribution.

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.  An 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?

In short, no. Copyrights are automatically granted the moment an original work is created.  However, you do need to register your work 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 confirm that you own or have a right to use 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. Furthermore, 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.

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. But, the cost of registering a copyright is negligible when compared with the benefits from registration, and is often a modest fee. In most cases, registration is a prerequisite to filing a lawsuit to enforce the copyright. 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.

How do I know if a Copyright has been Infringed?

Copyright infringement occurs 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. Lawsuit asserting claims of copyright infringement are encouraged to be brought in federal court.

What are the Remedies for Copyright Infringement?

Aside from removing or destroying an infringing use, as the copyright holder you are entitled to seek damages as well. If you are a victim of copyright infringement, you may 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 challenges to attorneys when accepting copyright infringement cases on a contingency basis.  To start, proving damages for copyright infringement can be a daunting task.  For that reason, the Copyright Act makes statutory damages available as an alternative to actual damages.

When an attorney takes a copyright case on contingency basis, he is investing his time, energy and resources in the copyright claim.   For that reason, it is often the case that many of the deciding factors for choosing a case revolve around the likelihood of financial recovery.

There are several factors that the attorneys at Barshay Sanders explore when evaluating a whether it is appropriate to take a copyright infringement case on a contingency basis, such as: (i) the value of the copyrighted work, (ii) the damages suffered by the copyright holder, (iii) the identity of the infringer and profits the infringer received from the infringement, (iv) the extent and willfulness of the infringement, (v) whether a copyright was registered before the infringement or within 3 months of first publication, and (vi) 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,and sensible,for those blessed with creative skills to be protective of their works. However, placing an actual value on creative works is often difficult, if not impossible. To this end, copyright holders must be mindful of the aims of an infringement lawsuit –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.  Without the possibility of financial recovery, it is not sensible accept a copyright case on contingency.

 2. The damages suffered by the copyright holder.

There are many ways to measure damages for copyright infringement. Copyright owners are sometimes deprived of income or royalties when their works are stolen and used without approval.The attorneys at Barshay Sanderswill 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 to the best of our abilities 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, as a viable option. 

4. The extent and willfulness of the infringement.

Making a single copy of a work may not be significant enough to warrant a lawsuit, depending on the nature of the copyrighted work.  However, that does not mean that the infringement does not matter or should be stopped.It may be determined that it is not economically beneficial 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.  For example, a proven, willful infringement can return a statutory damages award five-times the amount of an innocent infringement.

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

Proving actual damages for copyright infringement is often difficult.So, 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.  To recover statutory damages and attorneys’ fees, the copyright must be either (i) registered with the Register of Copyrights prior to the infringement, or (ii) within three months of first publication. Foreign works are subject to the same registration requirements, even though registration is not required to file and infringement suit in the United States.   So, don’t take the chance- register your copyrights!

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

Available defenses for infringement are contingent on the nature of the work, the allegedly infringing use, as well as the identity of the alleged infringer. The “fair use” defense is codified in the Copyright Act,or 17 U.S.C. §107, and can be an absolute defense to an infringing use depending on the (i) purpose and character of the use, (ii) nature of the copyrighted work, (iii) amount of the copyrighted work used, and (iv) effect of the use in the relevant potential market. More importantly, the statute of limitations for infringement is three years from the date of discovery.  So, act promptly! Other defenses to infringement, such as the safe harbor provided by the DMCA, must also be evaluated.