As discussed in our post on the types of intellectual property, copyright is one of the most common types of intellectual property that many business owners are faced with. It is important to know what it is, how it works and the elements of infringement so you can either keep yourself from infringing or identify if it is done to you.
Our firm actively works on registration of copyright, as well as copyright infringement cases (both representing either the infringer or the one being infringed).
Copyrights are an original work of authorship fixed in a tangible medium of expression that is capable of being perceived by a human being (such as logos, images, text, etc.). Copyright is a set of rights given to authors/creators as to the ownership and use of their creative works, and is subject to protection based on Article I, section 8, clause 8 of the U.S. Constitution, and Acts of Congress relating to Copyright in Title 17 of U.S. Code.
While copyright attaches at publication, we highly recommend registration protection for enhanced legal argument and strength to protect your intellectual property.
Infringement occurs when someone owns a copyright work, as defined above, and another uses the work in a capacity that they they do not have permissions for.
First, we look to whether the material in question is subject to protection in the first place. See, e.g., Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
Second, we determine if the defendant had access to the material in question. . The originality element supposes only that the author made the work independently. Therefore, two people can have rights in the same or substantially similar works. To prove infringement, access to the allegedly infringed work is therefore required.
Before proceeding in court, the plaintiff must have a registration. Infringement occurring after registration, or registration made with 3 months of publication, is especially powerful and helps to lend strength to a copyright infringement claim.
For non-registered works, that is works that receive common law copyright protections at publication, may only receive actual damages and disgorgement of profits.
Alternatively, registered works have the potential to receive statutory damages of $750-$30k, and up to $150k for willful infringement if infringement after registration or registration within 3 months of publication (plus, attorney’s fees).
Lastly, impoundment and injunctive relief are remedies that may be available.
When it comes to copyright infringement claims, there are four main defenses:
As you can see, copyright seems fairly basic as you work through understanding what it is, but can become quite complex as you enter into registration and enforcement of copyrights. If you have any questions, please feel free to reach out to our firm for an initial assessment of your situation.