Copyright Enforcement

A copyright protects an author of an original work.  The work must be produced in a tangible form (i.e., written, recorded, etc.).  Once produce in a tangible form, the owner should register the copyright

Works should be marked with a copyright notice, which includes the C in a circle (i.e., ©), the year of first publication, and the name of the owner.  Sound recordings should be marked with a P in a circle (i.e., ℗). 

To infringe, one must, without authorization of the owner, reproduce an original copyrighted work; prepare a derivative work (i.e., a work that includes major copyright-protected elements of an original work); distribute copies of a work by public sale or other transfer of ownership, rental, lease or lending; perform or display a work publicly; or perform a work by audio transmission.

The alleged infringement cannot fall within one of the following exceptions: fair use; reproduction by libraries and archives; copies of phonorecords; performances for educational, religious or cultural purposes without admission; secondary transmissions (e.g., relaying signals by broadcast stations); ephemeral recordings (e.g., temporary recording by and for a transmitting organization).

If infringement does not fall within one of exceptions, the owner may also send a cease and desist letter, identifying the work and the owner of the work, stating that the work is copyright protected, identifying the act of infringement and providing demands that the infringement cease.  Attach a copy of the registration certificate to the letter to show proof of ownership.

If the infringement continues, the owner may seek injunctive relief (i.e., a court order demanding that the infringer stop performing the infringing acts), actual damages and profits, statutory damages, and in some instances attorney’s fees and costs.  See 17 USC Sections 502 through 505.

The copyright owner is entitled to recover the actual damages, and any profits of the infringer attributed to the infringement, which are not included in the actual damages.  When determining the infringer's profits, the copyright owner only has to show proof of the infringer's gross revenues.  The infringer must prove its deductible expenses and the elements of profit attributed to factors other than the copyrighted work.

At any time before final judgment, the owner may elect to recover an award of statutory damages in an amount ranging from $750 USD to $30,000 USD per work, and up to $150,000 if the owner can show that the infringement is willful.  Statutory damages are only available for works that were registered with the Copyright Office prior to infringement or within three months of publication.  See 17 USC Section 412.

The infringer may be subject to criminal penalty if the infringement was committed for private financial gain by reproduction and distribution of one or more copyrighted works having a total retail value worth over $1,000 USD, or by commercial distribution of a work.  See 17 USC Section 506For criminal penalties, see 18 USC 2319.  Internet crime complaints may be filed with the IP Rights Unit of the FBI

If you have a question about copyright enforcement, askme at thedford@askmeip.com