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Copyright is a way to protect your work and prevent others from using it without your permission. Every week major businesses, musicians, artists and writers defend their own copyrighted material from misuse by counterfeiters, scammers and even other professionals in their field. As a result, copyright litigation is an ever present story in the news, especially in the US.
Recently, a case concerning the estate of Andy Warhol and fair use, Andy Warhol Foundation v. Goldsmith, reached the Supreme Court – who will come to a decision in 2023 that has the potential to reshape copyright law in the US for years to come.
For many businesses and individuals, copyright litigation is the most reliable and robust way to safeguard their copyrights. But, how does the legal process of defending your copyrights work? What evidence do you need to build a strong case? And, what remedies are available to those that prove their copyrights are being misused?
In this succinct copyright litigation handbook we discuss a number of topics, including:
Copyright infringement occurs when an individual uses, reproduces, performs, or publicly displays copyrighted material without the permission of the copyright owner. Business owners in charge of intellectual property (IP) must be aware of the potential for copyright infringement and have safeguards in place to prevent their copyrights from being misused.
Copyright infringement is more common than you may think. Many businesses and individuals inadvertently engage in copyright infringement while carrying out normal activities. Here a few real-world examples of copyright infringement:
Copyright infringement often results in conflict between the copyright owner and the alleged infringer. If the facts of the matter are contested or if there are diverging interpretations of the relevant law, this conflict can sometimes lead to copyright litigation.
Copyright litigation is the legal process of a copyright holder pursuing a potential copyright infringer. A copyright owner is entitled to sue in civil court anyone who infringes their copyright in any way. In US law, the copyright litigation process differs from state to state but is underlined by the guiding principle that a copyright holder has the right to defend their copyright.
In the online business world, copyright infringement is common. Yet, many refrain from pursuing the infringers because they lack the legal knowledge and resources. However, copyright litigation is a vital tool for businesses because it enables you to safeguard valuable IP, preserve your brand’s reputation and maintain a competitive advantage.
As a business you live and die on the value of your brand and your intellectual property. Your logos, your images, your slogans, your processes, your ideas – all of these can comprise your business’s intellectual property. And, while these original concepts are hard to create they are unfortunately quite easy to steal.
Therefore, one of the most vital reasons to begin copyright litigation is to protect the copyright materials that you will have worked so hard to produce. These copyrights will often also represent a substantial amount of value to your business – so they must be protected.
As well as protecting your revenue you have to also think about protecting your company’s reputation. If you allow anyone to misuse your copyrighted material, the reputation of your brand will be diminished. Your brand’s image and reputation will be diluted if there are thousands of counterfeit versions of your copyrights out there.
Businesses use strong original content to establish their presence in crowded marketplaces and gain a competitive advantage. Copyright litigation helps to protect copyrights which ensure you can have exclusive ownership of the original content that will give you an edge over your competitors.
Preparation is the key to success in copyright litigation. Strong evidence and swift action will often be the difference between winning and losing. Here are a few of the elements you should consider before commencing copyright litigation:
You can only prepare for copyright litigation if you know what copyrights your business owns. It is important to regularly conduct an internal review of company assets to ascertain the nature of the copyrighted material you own, how it is used and how it is available to the public.
Have you got a good case? There is little point going any further towards copyright litigation if you believe your case will be weak. Evaluating the strength of the case will involve: looking at the relevant evidence, assessing the practicalities of presenting this evidence, searching for precedents and understanding the strength of your position.
Do you know who the potential infringer is? Are there multiple potential infringers? It is important to establish who your potential defendants are, how contactable they are and whether they have been in trouble for copyright infringement before.
It refers to determining the monetary compensation for harm caused by infringement. Damages may be actual or statutory, depending on the case. Factors like nature and scope of infringement are considered by courts in determining damages.
Evidence gathering is one of the largest challenges to complete when preparing for copyright litigation. It is an essential stage in any litigation process that will often serve to guide the trajectory of the case.
The evidence you gather will also help you assess all the other stages of your preparation such as your chances of success, potential damages, potential defendants and possible witnesses.
Who can you call before the court to give insightful and telling expert evidence? Before you embark on the copyright litigation process you should ensure that you will have strong expert witnesses to rely on if the case makes its way to trial.
Here is the step-by-step process of a standard copyright litigation case:
Once you identify that an individual or business is infringing your copyright then to begin the litigation you would normally send a cease and desist letter. This letter is not legally binding but has the effect of letting them know that they are potentially doing something wrong and asks them to stop.
A standard cease and desist letter may use the following language, “I/We demand that you immediately cease the use and distribution of all infringing works derived from [the copyrighted work], and all copies, including…and that you desist from this or any other action…”
If the cease and desist letter fails to have the desired effect then the next step is file a claim, bringing your lawsuit in a federal court to enforce your rights.
The discovery process involves the exchange of relevant evidence and information. Both parties will submit answers to standard questions and document requests. This is a vital part of the copyright litigation timelines and can have a significant bearing on the ultimate success of your case.
Most disputes will be resolved before trial. However, if there are still ongoing disagreements, the copyright litigation case will go to trial. At trial both sides will have an opportunity to present and scrutinize evidence. Here expert witnesses will be called to provide their perspective. Following evidence, a judge or jury will consider the merits of the evidence on both sides and deliver a verdict.
If either party is unhappy with the verdict and/or the damages awarded, they can appeal these decisions. The highest court of appeal in the US is the Supreme Court of the United States. However, it is rare for appeals to reach the Supreme Court because they are usually decided by lower Circuit Courts of Appeals.
As with many cases brought in the federal court, a copyright litigation case is not cheap. Litigation can often be complex and lengthy, leading to high legal and court fees. The overall costs will also be determined by the success of the case. As you can expect, if you lose you can expect to pay significantly more.
An AIPLA report stated that the average cost of a copyright litigation case, from pre-trial through to appeals, is $278,000. If you are on the losing side you can expect to pay the majority of these costs. Furthermore, under federal law a copyright infringer may have to pay up to $30,000 per work or up to $150,000 per work if the defending party can show that the copyright infringer was aware that they were engaging in copyright infringement at the time.
Copyright litigation process can be complex, intimidating and expensive. Fortunately, you do not have to confront this process on your own. Red Points’ Revenue Recovery Program is tailored-made to ensure that businesses can recover revenue lost to counterfeiters, and copyright infringers too. Red Points will help you build a strong copyright litigation case with three simple steps:
Our automated, machine learning bots will scour the web looking for counterfeiters infringing your copyrights. We will target infringers with speed and precision to ensure you can efficiently kickstart your litigation process.
Once the infringers are identified we start collecting all the relevant data and evidence you need to build a strong case. Supported by this evidence you will then be able to start legal action.
Our experienced partners will undertake legal action on your behalf. They will handle each stage of the legal process and ensure that your case proceeds smoothly.
Each step of our process will be tailored to your business and your circumstances to ensure you can recover your revenue as efficiently and cost-effectively as possible. And the best part is, there will be no cost associated with this program as it works on a contingency basis, meaning we only get paid if we successfully recover your lost revenue. This way, you can rest assured that our team and legal partners are working hard to protect your copyrights without adding any financial burden to your business. If you want to learn more, apply here.
Copyright litigation is a vital tool for businesses looking to safeguard their copyrights, protect their brand and maintain their growth. However, as we have seen, it is not always easy for businesses themselves to constantly monitor the web for copyright infringement and take swift action.
This is where Red Points’ Revenue Recovery Program can help. Our program ensures that you can quickly pinpoint repeat infringers, gather actionable evidence, and quickly begin the litigation process.
With automation, transparency and experienced analysis, Red Points takes the power out of the infringer’s hands and returns it to you. Ultimately, this means that you can take back revenue from counterfeiters and have peace of mind about your copyrights.