Remedies for Copyright Infringement

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 What Can I Recover If My Copyright Has Been Infringed?

There are several remedies available to the owner of a copyright in the occurrence of an infringement. These remedies are available to owners of documented copyrights under § 106 of the federal Copyright Act. These remedies include monetary relief, equitable relief, expenses, and lawyer fees.

What Is Copyright?

A copyright is a privilege to stop others from using your initially authored work. Copyright law is almost like trademark law, protecting logos and brand names and shielding inventions. The object or work to be copyrighted should be an original, not a replica or reproduction of property already copyrighted.

Under the federal copyright law, copyright entitles the owner to many undivided rights, such as the right to:

  • Copy the copyrighted work
  • Disperse copies of the copyrighted work to the public for sale
  • Perform the copyrighted work
  • Rights to produce a license that is derived from other copyright materials
  • Licensing rights to manufacture and make a product

What Are the Different Types of Copyrighted Works?

Copyrights can cover unlimited types of creative work, such as:

  • Recorded or sheet music
  • Books and novels
  • Software codes, video games, and CD-ROMs, although these may not be protected if they have already been distributed through a “copyleft” agreement
  • Art, such as paintings, plays, dance choreography, and sculptures

What Is Copyright Protection?

Under federal law, you automatically get the copyright to your work once you have “fixed” your original work in a “tangible medium of expression.” You must have independently created the work and not adapted it from something else. The work must also be positioned in a sufficiently permanent medium so others can reproduce, view, or share it.

Copyright protection emerges when an author fixes a work in a tangible form without the author having to do anything. Once a type of work has copyright protection, the inventor or creator determines who can use the work and for what objectives the work can be used. Once the work is covered, no one else can utilize the work without the creator’s approval.

Should I Register a Copyright?

There are several reasons you should still formally register your copyright. While your work has automatic copyright protection once it fits the overhead description, you are restricted in your remedies if you do not register the copyright correctly.

For example, copyright registration will affect:

  • Lawsuits: If you are a U.S. copyright owner, you must register your copyright before commencing an action for copyright infringement
  • Damages: You cannot obtain damages for infringement for any time before the copyright is registered
  • Evidence: The registration of copyright, in addition to some other measures, is evidence of the validity of a copyright

An owner and creator of original work can register a copyright at the U.S. Copyright Office. Usually, an owner needs to fill out a form specific to the work that the owner desires to register and submit a fee.

What Is Copyright Infringement?

Copyright infringement occurs when a person violates the copyright holder’s exclusive rights. For example, only the copyright owner of a play may perform the play in public places for proceeds. If another individual or organization tries to perform the play in public for profit, they might be held responsible for the infringement. Another example is when a person vends copyrighted songs without authorization.

Punishment for infringement can include civil charges for lost earnings and other consequences such as confiscation of the unauthorized material. Federal charges can also apply in some infringement cases, making it a grave offense.

Monetary Relief

The Copyright Act furnishes the recovery of two types of monetary relief, actual damages and statutory damages.

Actual damages include:

  • Lost earnings resulting from the infringement
  • Infringer’s profits
  • Up to $100,000 for intentional (i.e., deliberate) infringement

Instead of seeking actual damages, a copyright owner may opt for statutory damages, ranging from $500 to $20,000 per infringement. The court may choose to increase the fine to $100,000 in cases of deliberate infringement. Registration of the copyright before infringement is a requirement.

Punitive damages are typically not recoverable in copyright infringement cases.

Equitable Relief

Injunctions are orders administered by a court ordering someone to do something or forbidding some act.

Injunctions are available in two forms:

  • Preliminary injunctions: court orders made in the early stages of a lawsuit or petitions which restrict the parties from doing an act that is in dispute (e.g., stopping publication of infringing work)
  • Permanent injunctions: final orders from a court that a person or entity permanently stop doing certain activities or take specific actions

Preliminary injunctive relief is given if the copyright owner can indicate a high probability of winning the case. Unlike in trademark and patent cases, the copyright owner need not establish a permanent injury sustained. The court also may authorize the seizure, impoundment, or destruction of any infringing copies.

It is within the court’s discretion whether or not to give permanent injunctive relief, although it is often awarded to the prevailing copyright owner.

What Is a Trademark?

A trademark is a term, phrase, logo, or other symbols used to specify a product, the source of a product, and the manufacturer or merchant. A trademark is usually utilized to differentiate one product and its manufacturer from another.

Before registering your trademark, it is essential to run a trademark search to resolve whether another company or entity is already using the same name. You do not want to develop a company name, run ads, develop brochures and specific items, and be compelled to change the name.

What Is a Patent?

You want to shield your invention from unauthorized use and distribution as an inventor. Under federal patent regulation, a patent is given to an inventor to exclude others from “making, using, offering for sale or selling the invention” in the United States. Therefore, a patent is granted to an inventor to safeguard their invention.

Patents generally exist for twenty years and can be used for any invention in any technology field. Patents are part of international agreements with the World Trade Organization (WTO), so member nations are expected to acknowledge and implement legal patents.

Costs and Attorney’s Fees

A copyright owner may recover his costs and reasonable attorneys’ fees depending on the jurisdiction.

Should I Consult a Lawyer about My Copyright Issues?

The remedies and resolutions for copyright issues are complicated and tricky. You may wish to contact a copyright attorney. An attorney can help you choose the best remedy for your particular needs. A lawyer can also participate in ongoing research to ensure no one else uses your copyright without your consent. Additionally, in copyright infringement cases, an attorney can guide you through the complex and stringent procedural requirements for litigation and bring out the core issues of your case.

Intellectual property (IP) is an area of law that confines fundamental ownership rights over inventions, creative works, unique names, ideas, industrial processes, business models, and computer program code. The purpose of intellectual property protection is to protect the works of creatives and inventors while permitting the public access to those works without the threat of theft.

If you search for an intellectual property lawyer, LegalMatch can assist you with finding the right person for your needs. Please search our database of qualified intellectual property lawyers with the knowledge, skillset, and experience to help you protect what is rightfully yours.

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