According to the United States Copyright Office, copyright is “A form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.”
Copyright law offers protection to both unpublished and published works, and can include musicals, artistic works, movies, song scores, computer software, dramatics works and books. Copyrights apply to original works of authorship and are established at the time of creation when the work is put into a tangible form.
Copyright infringement occurs if someone distributes, reproduces, performs or publicly displays a copyrighted work. To determine whether your original work has been illegally used, it’s important to establish whether three elements exist:
- you have a valid copyright;
- the violator had access to the copyrighted work; and
- their use of the original work was not allowed by a legal exception.
The most common exception is fair use, which may allow a teacher, for example, to use a small segment of a book to illustrate a lesson. Parody may also be considered “fair use.” If fair use is allowed, the work may be used without the user having to request permission from the creator or from having to pay the copyright holder a fee.
Certain works may also be used because they are considered to be in the “public domain.” For example, all works published before 1923 in the United States are now in the public domain.
Legal Remedies for Copyright Infringement
Unfortunately, copyright infringement is a significant problem and can severely damage not only the economy, but the freedom and expression of artists, actors, writers and other creators. With that in mind, the U.S. government has created penalties under the Copyright Act, which are substantial and are meant to act not only as a deterrent, but also to allow for compensation to the copyright owner by the infringer. Under U.S. laws, those who have their original copyrighted works used illegally and without their permission have several legal remedies.
1. Request an injunction.
The first legal option to stop someone from using your copyrighted work illegally is to request a temporary injunction, which is an order from the court. A temporary injunction allows for the preservation of the positions of both parties until the court has a chance to review the case. To get an injunction, you will have to be able to show:
- a combination of probable success on the merits and the possibility of irreparable injury; or
- that serious questions are raised, and the balance of hardships tips sharply in favor of the moving party. (Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., Inc., 240 F.3d 832, 839–40 (9th Cir.2001))
Unfortunately, even temporary injunction hearings can take a while. With that in mind, you may also be able to request a temporary restraining order, which can stop the infringer’s actions while you wait for the temporary injunction to be issued.
Note that after the end of the federal court case, if you win the infringement claim, you may also have the legal right to seek a permanent injunction against the infringing party if the court determined that there was liability and believes that there is a continuing threat that the infringer will commit additional violations.
2. Impound and dispose of infringing articles.
The second legal remedy against copyright infringement is impoundment and the destruction of the copies, including “all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.”
3. Recover damages and profits.
Another legal option for copyright infringement is to file a claim to seek compensation for the damages from the infringement, including profits.
When seeking damages, you may collect the actual damages (which is the actual amount lost) or statutory damages, which can vary. For example, the statutory amount could be anywhere from $500 to $30,000 per infringement if the act was not willful, and as high as $150,000 for intentional infringement.
Damages recovered may also include payment for any court costs, as well as attorney’s fees.
4. Bring criminal charges.
It is also possible that criminal charges can be brought against a copyright infringer if they willfully committed the copyright infringement, they did it for commercial or private financial gain, and they distributed copyrighted works that total a retail value exceeding $1,000 within a 180-day period.
Steps to Protect Your Copyrighted Work
Although there are several legal remedies available to protect your copyrighted work, the best protections start prior to infringement and include:
- properly registering your mark;
- making sure your work is properly marked;
- keeping evidence of the creation of your work; and
- establishing proper legal agreements if your work was created through a collaborative effort with another person.