U.S. Copyright Law -- page 4
Protecting Your Copyright
What is "infringement"
Infringement is a violation of one or more of the copyright owner’s exclusive rights. In order to prove infringement in court, a copyright owner needs to show:
1. Ownership of a valid copyright, and
2. Copying of protected elements of the work
Since direct proof of copying is usually difficult to find, copying can be shown by proving:
1. The infringer had access to the protected work, and
2. The infringing work is “substantially similar” to the protected work.
When you suspect infringement
Here are the steps you should take when you suspect your copyright is being infringed.
1. Register your copyright
If you haven’t already registered your copyright, do so. You generally cannot bring suit without a registration.
2. Notify the infringer
The infringer should be sent a "cease and desist" letter preferable written by an attorney for the copyright owner. The letter should state the basis for your claim of copyright ownership, the nature of the perceived infringement, and a demand that the infringement cease by a certain date. Other demands can also be included in the letter. In some circumstances, it may help to suggest that any claims for damages will be waived if the infringer agrees to enter into a licensing agreement with the copyright owner.
3. Litigation
If no amicable resolution can be reached, litigation may be appropriate. Lawsuits must be filed no later than three years after the infringement. If suit is not filed as soon as possible after the infringement, then the court may not order that the infringement stop while the lawsuit is pending.
Remedies
Injunctive relief
As part of a final judgment, a court can issue an order requiring the infringer to stop infringing. The court can also order the destruction or other reasonable disposition of the infringing goods as part of the final judgment.
While the lawsuit is still pending, the copyright owner can ask the court to preliminarily enjoin the infringement, and impound any allegedly infringing goods. In order to have the court order this preliminary relief, the copyright holder will generally have to show that he or she is likely to win the lawsuit and has acted a swiftly as possible to stop infringement and to protect the copyright.
The court will likely require the copyright owner to post a bond to cove the defendant’s losses, if the court decides after hearing the entire case that the injunction should not have been issued.
Many infringement cases begin and end with the request for preliminary injunctive relief. In order to rule on such requests, courts hold hearings and both sides put on the best evidence they have.
Because the court issues a ruling based on whether the copyright owner is likely to win or not, the parties have a good idea whether continued litigation is worthwhile.
Any injunctive relief orders can be enforced throughout the United States.
Damages
There are two categories of damages: actual and statutory. As the term implies, actual damages can be proved.
A copyright owner must choose between either actual damages or statutory damages. Both will no be awarded.
Statutory damages are generally not available for any infringement that occurred prior to the registration of the copyright.
If you choose actual damages, you must prove your actual damages occurred as a result of the infringement. Actual damages may be more OR less than statutory damages.
Actual damages plus profits.
These are the actual, provable damages suffered by the copyright owner as a result of the infringement, plus any profits of the infringer that are attributable to the infringement. The infringer’s profits are computed separately from the actual damages suffered by the copyright owner.
Statutory Damages
For all infringements involving one work, the award can range from $500 to $20,000, at the court’s discretion.
For willful infringement, statutory damages can rise to as much as $100,000 for every infringement involving one work. (Remember, it is the DESIGN that is copyrighted, NOT the article itself. So if the infringer sells one or one million rugs of the same design, the maximum statutory damage figure is still$100,000.
On the other hand, if the infringer can prove that it was not aware and had no reason to believe its actions were infringing, the court can reduce statutory damages to as little as $200.
The benefit of statutory damages is that no actual losses need be proved in order to prevail.
Court costs and fees
Court costs can be awarded to the prevailing party. Unlike most litigation in the United States, where each party has to pay it’s own lawyer, the Copyright Act provides that attorney’s fees can be awarded to the prevailing party, except where the winning copyright owner failed to register its copyright before the infringement commenced.