Infringement is the unauthorized use of intellectual property that is protected by a copyright, or trademark or patent registration. When creative works, trademarks or patents are registered, anyone who wants to make use of them must have the permission of the creator or whoever owns the intellectual copyright, except in certain limited circumstances. A California lawyer consultation would help a person understand intellectual property law.
Infringement is often used in connection with copyright protection, but it can also involve other categories of intellectual property law, including the law that protects trademarks and patents. In recent years, domain name infringement has also become a common legal issue. A California lawyer could explain how intellectual property laws protect various types of intellectual property.
Proving infringement requires showing that a valid copyright, trademark, or patent is in place. It also requires evidence that the defendant used the trademark material, artistic work, or invention without obtaining permission from the person who has the right of exclusive use of the material under either California or federal law.
Copyright infringement issues in California are governed by both federal law and California state law. California’s copyright laws protect the following original creative works:
- Original written products, such as novels, essays, magazine articles, and any other type of original written content
- Musical works, such as compositions recorded on sheet music, song lyrics, recordings
- Works of drama, such as plays, screenplays, scripts
- Works of visual art, such as paintings, drawings, photographs, sculptures
- Software, such as computer programs, source code, applications
- Film and audiovisual works, such as movies, TV shows, and online videos
- Architectural works, such as designs and plans fixed in tangible form.
A copyright gives the creator of the material exclusive control over the copying, sharing, performing, showing, or changing and remixing of their copyrighted work. A copyright usually lasts for the lifetime of the creator of the material plus 70 years. If the copyrighted work was created for a company, the copyright lasts 95 years from the date of publication or 120 years from the date of the material’s creation.
California law sets specific registration requirements and criteria for copyrights that are different from federal copyright laws. To obtain a California copyright, the creator must have made the work or first published it in California; or the creator of the work must be a resident of California when the work is created.
In addition, copyright registration under California law provides protection for newsgathering and for sound recordings of musical works. Also, the fee structure for registering copyrights under California law is different from that for registering under federal law.
Of course, a creator can also register a copyright by submitting an application with the United States Copyright Office and paying the federal fee. The application should include a completed form and a copy of the copyrighted work. Registration can be done online or by mail.
It usually takes 6 to 8 months to receive approval of a copyright application. However, the time can be shortened by payment of an extra fee. It is important to note that while a copyright will be effective from the date of submission, the registrant does not receive their official certificate of registration until approval has been granted.
California handles disputes over copyrighted material through its state and federal courts, which have jurisdiction over copyright infringement lawsuits. The California courts follow the federal Copyright Act, which provides rules and regulations for how copyrighted material can be used and what constitutes infringement.
Do I Need an Intellectual Property Lawyer in California?
If another person or entity is making use of a person’s intellectual property, whether it is copyrighted or subject to trademark or patent protection, the person needs to consult an intellectual property lawyer in California. The lawyer may begin the case by writing a letter to the person making use of the property, directing them to stop their use or face the legal consequences.
What Is Copyright Infringement in California?
Copyright infringement is using a copyrighted work without the permission of the copyright holder. The holder of a copyright has the exclusive right to reproduce, distribute, create derivative works, e.g., a sequel, publicly display and/or publicly produce their copyrighted work. If another person or entity does any of these things without the holder’s express permission, they have infringed on the copyright.
What Are the Penalties for Copyright Infringement in California?
The remedies below are available to the owners of intellectual property in California for copyright infringement. The owner would have to file a lawsuit naming the infringing party as a defendant asking for the following:
- Money Damages: The amount of money would be compensation for any financial losses the owner suffered because of the infringement, such as lost profits, licensing fees, and statutory damages. In California, specific remedies include statutory damages from $750 to $30,000 per work, and up to $150,000 for violations that are willful.
The California Art Preservation Act provides certain protections to visual artists against the destruction or modification of their works.
- Injunctions: The copyright owner can ask a court to issue an injunction, or order that would direct the infringer to stop their use and not to distribute the copyrighted material.
- Seizure and Destruction: A court may order that all copies of the protected work be seized and destroyed. A court could also order that the infringement cease.
- Attorney’s Fees and Costs: If the copyright owner succeeds with their lawsuit, they may be able to recover the attorneys’ fees and costs they incurred in prosecuting their lawsuit.
- Criminal Proceedings: Copyright infringement can also be prosecuted as a criminal offense in some cases. A person who is convicted of criminal copyright infringement may be sentenced to incarceration and/or the payment of a fine.
It is important to note that these remedies are specific to California state law. They may not be available to the same extent in all states. Consulting an experienced California intellectual property lawyer would help a person respond appropriately to infringement on their rights in California.
What Are Royalty Disputes? Are These the Same as Infringement?
Royalty disputes are not the same as disputes about infringement. Royalty disputes arise among parties to the production of creative works regarding who is entitled to the royalties, i.e., the income, that the sale of a production generates.
For example, in the music industry, the creative artist, the producers and record labels involved in the production and marketing of a musical work each collect a portion of the musical royalties generated. Usually, they have a royalty agreement that spells out how the income is to be distributed among them. But disputes arise, of course, and a party to a royalty agreement may need a California lawyer to protect their interests if a dispute develops.
What Are the Legal Defenses to Infringement in California?
There are several defenses to copyright infringement. A defendant who can prove a defense successfully would not be liable to the copyright owner.
Fair use is the most common. The fair use doctrine allows a party to use copyrighted material for certain purposes that are considered permissible because they benefit the public interest. Examples of fair use are art criticism, news reporting, teaching and research. Courts weigh the following four factors to determine whether a use is fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use on the potential market for or the value of the copyrighted work.
Another way to defend against a claim of copyright infringement is to claim that the work that infringes on copyright is, in fact, an independent creation. In most cases, the law allows the court to infer that the defendant infringed on the copyright owner’s work on the sole grounds that there are “substantial similarities” between the two works. In addition, the copyright owner might bolster this inference by showing that the defendant did have access to their work.
However, a defendant can defeat this inference by showing that they independently created their own work and did not copy it. Evidence to support this defense would be such items as documents and other evidence that display the defendant’s creative process. This would be such evidence as first and subsequent drafts and notes.
The so-called “scènes à faire” doctrine may also offer a defense in some cases. This defense is available when certain elements of a work are characteristic of the genre of the work. These characteristic features are not protected by copyright.
For example, a spy novel or murder mystery would use stereotypical character types, e.g., a spy or a detective, and standard scenes, e.g., in a mystery, discovery of a corpse. A Western film is always going to have a character who is a cowboy and an outlaw or other characters and scenarios that are typical of the genre. These elements are not protected by copyright.
What Is a Trademark Under California Law?
Trademarks are also a kind of intellectual property. Trademarks are such items as brand names, logos, slogans, and other identifiers of a business and its goods or services in the marketplace. Trademarks can be registered with the federal U.S. and Trademark Office (USPTO). Trademarks are protected from infringement throughout the nation by federal law.
Within the borders of California, registration with the California Secretary of State gives protection to trademark rights within the state only.
When a party who does not have the permission of a trademark owner uses a mark, it is infringement. They might make use of a trademark that is exactly the same or similar to a trademark that is protected. Trademark infringement entitles the owner to remedies that are similar to those for copyright infringement.
Even a trademark that has not been registered is protected by California law if they have been used enough in the marketplace to have acquired a distinctive identity.
What Are Some Common Types of Trademarks?
We are all familiar with many kinds of trademarks, even if we do not know that they are trademarks. Some well-known trademarks are the following:
- Delta®: the name of an airline
- McDonald’s®: the name of a famous restaurant
- Geek Squad®: the name of a well-known computer repair service company
- “Fly the Friendly Skies®”: A slogan used by United Airlines®
Companies have visual designs with characteristic colors that are their logos, and they are always presented by the company in the same form on their products and packaging. The logo and its standard design are part of a company’s trademark.
Should I Hire a California Intellectual Property Lawyer?
If someone or some company is making use of your intellectual property without your express permission, you want to talk to a California intellectual property lawyer. Your attorney can provide you with the legal guidance and advice needed for your particular matter. They can also represent you in trial if litigation becomes necessary.
