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Protecting Against and Responding To Copyright Infringement

Copyright is a form of intellectual property applicable to any creative work that is both fixed in some tangible medium and at least minimally creative, or original. Works that may receive copyright protection include: literary works, movies, musical works, sound recordings, paintings, photographs, software, live performances, architectural works, choreographic works, and television or sound broadcasts. Creators of such works are granted exclusive rights in their works at the time of creation. For example, whenever you write a blog post or make a drawing or other artwork, you automatically own the copyright in it. But who protects your copyright?

It is largely up to the copyright owner or their legal counsel to police and enforce the owner's rights. If copyright protection is important for your business, you need a policy for searching for and responding to infringing activities. Your copyright may be infringed if someone does any of the following without your permission:

  • Makes or distributes copies of your work;
  • Performs your work publicly (such as for film or music);
  • Displays your work publicly (such online or in advertisements); or

• Makes "derivatives" of your work (such as a movie based on a book).

Although copyright protection is secured automatically when a work is created, an author or creator of a work cannot bring a suit for copyright infringement unless they have filed a copyright application with the Copyright Office. In order to obtain statutory damages and attorney's fees, registration must be made within three months after publication of the work, or prior to the infringement of the work. Otherwise, only an award of actual damages and profits is available to the copyright owner.

One possible response to copyright infringement is to first send a cease and desist letter to the alleged infringer. This generally informs the person of your identity, rights, and intention to enforce your rights. Cease and desist letters may trigger licensing negotiations, or lead to legal proceedings or arbitration.

If a cease and desist letter does not lead to licensing negotiations or a stop in the infringing activity, you may wish to bring a suit for copyright infringement. To succeed in a copyright infringement action, you must be able to prove your ownership of the copyrighted work, prove infringement of at least one of your exclusive rights (and that the fair use doctrine should not protect the use). You should also consider the potential monetary recovery in comparison to your legal fees and costs and whether you are likely to recover attorney's fees as part of a judgment.

If you are able to prove that someone infringed on your copyright, you may be able to obtain financial damages, injunctions, orders to account for profits, and orders to hand over infringing goods to rights holders.

If you suspect that your copyrights are being infringed, or to discuss protecting your intellectual property, be sure to consult with the experienced Orange County copyright lawyers at Myers Berstein today.

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