Wednesday, September 28, 2011

Remedies for Copyright Infringement

So, if you have a copyright protected work, and another person copies it without your permission, you must file a lawsuit against the person who copied your work.  If you can prove that the person infringed your rights, what can the court do for you?

The first class of remedies a court is authorized to grant are known as injunctions.  The Copyright Act authorizes courts to grant both preliminary and permanent injunctions, ordering the infringing party to stop the copyright infringement and any violations of the author's rights of attribution and integrity in works of visual art.  In addition, the Copyright Act has provisions for impounding infringing copies and materials used to infringe.  Upon final judgment of infringement, these impounded things can be destroyed. 

The second class of remedies a court can grant are damages and profits.  The successful plaintiff in a copyright case is entitled to recover the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.  Additionally, he is entitled to collect any of the infringer's profits that are attributable to the infringement that are not already accounted for in the plaintiff's damages.  Generally, the actual damages will be the sales lost by the plaintiff to the infringer due to the infringer if the infringer is a competitor of the plaintiff.  Alternatively, if the infringer is not a competitor, the damages may take the form of a royalty payment for the infringing activity. 

One important aspect of proving damages in a copyright case is that the copyright owner only has to prove the gross revenue of the infringer.  The defendant then has the burden of proving how much should be deducted from the gross revenue for his expenses and how much of the gross revenue is due to factors other than his infringement.

As you can imagine, some copyright infringements might not generate a great deal in actual damages or profits.  The Copyright Act has provisions that provide for a different remedy, called Statutory Damages, in such instances. We'll talk about these provisions next time.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

Tuesday, September 6, 2011

How Long Does a Copyright Last?

Lots of folks know a little about copyright law, and one of the things people are always interested in is figuring out when a copyright is no longer valid.  First, lets talk about when copyright protection starts.  Under the common law, copyright protection began immediately upon the fixation of the work in a tangible medium.  Protection under the U. S. Copyright Act depends on when the work was published.  Between 1909 and 1977, federal protection commenced upon publication with proper copyright notice.  Since January 1, 1978, federal copyright protection commences at the time of fixation, same as the common law rule. 

Figuring out when a copyright expires is a little tricky.  Under the 1909 Copyright Act, the term was 28 years, which could be renewed for a second 28 year term.  In the revision of the Copyright Act that became effective on January 1, 1978, Congress decided to extend the terms of those works that were still under copyright protection.  It simply added 19 years to the second term, making the second term 47 years.  This period was extended again in 1998 by adding an additional 20 years to the second term.   

For works created on or after January 1, 1978, copyright endures vor the life of the author plus 70 years.  In the case of joint authors, the copyright duration is tied to the life of the longest living author, to which the 70 years is added.  If a work has an anonymous or pseudonymous author, the copyright endures for the shorter of 95 years after first publication or 120 years after creation of the work.  For works made for hire, the same term applies-- the shorter of 95 years after first publication or 120 years after creation of the work. 

If a work was created before January 1, 1978, but not yet published, the same terms apply, with the added option of protection until at least December 31, 2002, if that was longer than the other calculated term.  In an effort to encourage publication, those unpublished works that were published by December 31, 2002 are now protected under an extension of term through December 31, 2047. 

Next time, we'll refocus on infringement, and discuss the remedies for copyright infringement.  If you have any questions about copyright law, email us or post them on the blog.  The email is .  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals