Is a creative workpiece of yours being circulated without your permission? Or was your painting displayed at a public event without your consent? If your literary, creative, or artistic work is being used by a third-party for their benefit you may have become the victim of copyright infringement. However, as a citizen of the United States, you have the right to hold the responsible party accountable and recover the damages you incurred due to the misuse of your work. The best way to go about the process is to hire a copyright infringement attorney who understands the intricacies of the system.
Copyright is a part of the intellectual property laws. These laws automatically come into existence once you create and publish an original intellectual workpiece. Some examples of work that can be copyrighted are:
Copyright laws give you exclusive rights over the way you use your work. When a person encroaches on one of the exclusive rights granted under the copyright laws, it is known as copyright infringement. The encroachment of the following rights is considered to be copyright infringement:
If your intellectual property is being used for research, reporting, news, criticism, teaching, or scholarship it is considered to fall under the category of fair usage. This type of use of your work is legally permitted and does not classify as copyright infringement.
The general elements and ideas in your work cannot be considered to be exclusive and can be used by people. For instance, the element of showing cowboys in your movie plot based in Texas will be a non-original element that can be used by another producer or director. Similarly, the idea of creating a movie about a superhero will not be protected under copyright laws.
Copyright infringement can be broadly divided into two categories:
When the accused infringer is directly involved in copyright infringement, it is termed as a primary infringement. If a person knowingly or unknowingly has displayed, distributed, or performed your work without your prior consent, they are considered to be primary infringers.
Secondary infringement occurs when a person or party facilitates another person or a group in copyright infringement. There are three types of secondary infringement:
If you have been a victim of copyright infringement, your main objective is to prove the infringer’s liability in the damages you sustained. The first thing that you should know is that the statute of limitations for bringing a civil copyright infringement lawsuit to the court is three years and five years in case of criminal cases. The statute of limitations is measured based on the accrual of claims which refers to the day on which the copyright infringement caused an alleged liability. To prove a primary infringement, you need to prove that you own the copyright and the infringer copied or infringed upon one of the exclusive rights that you are granted under the copyright laws. More than often, the proof is established using circumstantial evidence that demonstrates that the infringer’s work has substantial similarities to your work and the infringer had easy access to your original work. Courts compare the two works simultaneously looking for similarities in words, appearance, formatting, sounds, and sequences. Although your exclusive rights come into force when you create and publish your work, having a copyright certificate will make it easier for you to establish your claim in court.
You can recover copyright infringement damages if you can successfully prove infringement in court. The damages you can recover are:
1. Actual Damages: These are the damages that you suffer due to infringement. Loss of sales, lost licensing revenue, loss of profits or any other monetary loss caused due to the infringement falls in this category. However, measuring actual damages can be difficult. You need to have an exact measure of the monetary losses you incurred and an estimation of the loss won’t be enough. This means to prove your losses in court you would require a subject matter expert to testify in your favor.
2. Profits from Infringement: Besides actual damages, you can also demand the infringer to pay the profits made from selling your copyrighted work. Like actual damages, evaluation of the profits made due to infringement is complex. Because the profits depend on the calculation of actual damages, proving them in court would again require the testimony of a subject matter expert.
3. Statutory Damages: This is an alternative to actual damages and profits from infringements. As the name implies, statutory damages are exact ranges of compensation defined in the Copyrights act. Because proving actual damages can be difficult, you can opt for demanding statutory damages for your losses. However, to be eligible for demanding statutory damages you need to have a copyright that was registered before or within three months of the publication of your work. The Copyright act specifies the damages as:
The damages are awarded per copyrighted work infringement. For instance, an infringing book would be considered to be one infringement and will be entitled to one award. The statutory damages you will receive would be decided by the judge or jury in charge.
Besides demanding damages, you can also demand a court order to restrict further infringement of work, destruction or confiscation of infringed items, and the fees you are required to pay your attorney.
Hiring a copyright infringement attorney will benefit you in the following ways:
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