Continuing with the theme of copyright law, let’s dive right into everybody’s favorite topic: infringement. First of all,
What exactly is copyright infringement?
You’ll remember from my last post that copyright grants the owner six exclusive rights:
- creation of derivative works
- public performance
- public display
- public performance of sound recordings via digital audio transmission
Violating any of these rights – in other words, exploiting any of these rights without permission or a license from the owner – constitutes copyright infringement. Attribution and intent don’t matter. You’ve seen it before: somebody uploads a copyright-protected song to YouTube and in the caption they write something to the effect of “Music © Owner. No copyright infringement intended.” Well, that’s all fine and good of you to acknowledge the owner, but unfortunately you committed copyright infringement whether you intended to do so or not.
Absent an agreement or license requiring it, that kind of CYA attribution has about as much legal force as those phony Facebook privacy notices that make the rounds every year.
So what can you do if your work is infringed?
The Copyright Act gives a copyright owner the right to sue for infringement in federal court. However, you may recall that one of the prerequisites for initiating suit is copyright registration. To enjoy the maximum benefits of copyright registration, your work will need to be registered before or within three months of publication (distribution of copies to the public) or before the infringement occurs.
Registering within these time periods provides two important benefits: first, it allows you to seek to recover attorney’s fees from the infringer. This is a big deal. Litigation isn’t cheap – between legal research, preparing court documents, and taking and defending depositions, it can easily cost five figures for even an inexpensive attorney to take a lawsuit to trial. Being able to recoup those costs is invaluable. Second, registration gives you the option to sue for statutory damages rather than actual damages and profits. The latter can be challenging to prove – they consist of your actual damage and the infringer’s profits resulting from the infringement. Moreover, statutory damages can be higher than actual damages and profits: the allowable range under the copyright act is between $750 and $30,000 per work, at the court’s discretion. If you’re able to prove that the infringement was committed willfully, that maximum increases to $150,000, again, subject to the court’s discretion.
If your work isn’t registered at the time of the infringement, then you’ll need to register before filing a complaint. You can still sue if you registered your work after the infringement occurred, but you won’t be able to seek attorney’s fees and you’ll be limited to recovering only actual damages and profits.
Also, bear in mind that the statute of limitations for copyright infringement is three years.
How do you prove copyright infringement?
In order to prove copyright infringement, you must show:
- ownership of a valid copyright; and
Seems easy, right? Well, not quite. Typically, you won’t have eyewitness evidence of actual copying, so copying is often proven by circumstantial evidence showing access and substantial similarity. Access is fairly straightforward: the infringer needs to have had a reasonable opportunity to copy the work. Substantial similarity is harder, and unfortunately, there isn’t a bright line test. Courts have tried to craft an objective analysis, but there doesn't seem to be a solid consensus -- it’s still a somewhat subjective question. Ultimately, though, the answer hinges on whether the original and the infringement have the same "overall look and feel."
Moreover, it's also entirely possible for two separate authors to independently and inadvertently create identical works without having committed an infringement.
Litigation isn't the only option
Just because the Copyright Act gives you the right to pursue infringement litigation doesn’t necessarily mean it’s the course of action you wish to take. Fortunately, litigation is but one option. There’s doing nothing, there’s going to court, and there’s everything in between. Maybe the infringement isn’t worth your time or resources, and doing nothing is actually a legitimate strategy. Maybe the infringer is a well-meaning admirer and simply wishes to share your work. That situation might call for a kind yet sternly-worded letter or email. In the digital space, you may want to file a Digital Millennium Copyright Act report, which we’ll cover in a later post. Ultimately, how you handle infringement is a business decision on your part.
Next time we discuss copyright, we’ll talk about fair use!
As always, if you have any questions about copyright law, feel free to leave a comment or contact me!
P.S. Fine. His name is Dennis the Hedgehog, he's counsel for Team Chaotix, and "it's complicated" between him and Rouge the Bat IF YOU MUST KNOW.