If you have an Internet-based business or your business has an online presence, it is important to ensure your copyrights are adequately protected and enforced. The ease with which digital works can be shared, manipulated and reproduced has significantly altered the area of copyright law.
Copyright law protects your original works, which are defined as literary works, musical works (including accompanying words), dramatic works (including accompanying music), pantomimes and choreographed works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works. Copyright also covers compilations – meaning the selection, ordering, and presentation of otherwise unprotectable facts, such as databases.
Importance of Copyright Registration
Copyrighting your work product is important because it notifies others of your rights, making it less likely others will infringe them while ensuring you will be ready to take action to enforce your rights should the need arise. Although copyright arises upon creation, and therefore registration is not necessary, there are important reasons you should copyright the product of your labor. As discussed further below, you must have a registered copyright before you can sue for copyright infringement, and “timely registration” creates a legal presumption that your copyright is valid. It also allows you to recover a specified amount of damages (statutory damages) and possibly attorneys’ fees without having to prove any actual monetary harm.
Copyright Law Compliance for Web site Owners and Operators
If you are an online service provider, you must ensure you are adequately versed about your responsibilities when someone alleges your platform has been used to post copyrighted material. The Digital Millennium Copyright Act (DMCA) creates an exemption for infringement to shield online service providers from liability for the infringing actions of their subscribers or for linking to sites that contain infringing information. If you are a Web site operator, you need to be informed about your responsibilities in taking action when allegations of copyright infringement are made, so that you can safeguard your immunity from legal action.
In a work-made-for-hire arrangement, the person who orders the work be done is considered to be the work’s author and owner of all rights, including copyright, worldwide. Under the work-made-for-hire doctrine, the work’s creator has no rights to the creation unless they are specified in the contract.
We advise on work-for-hire agreements to ensure you know before work begins that you will be the sole owner of the work and all rights created. Courts may differ on the issue of who owns the copyright to a Web site depending on such issues as whether the agreement was executed before work began. It is important to ensure you are aware of these and similar legal issues, which apply whether you have hired a traditional employee or an independent contractor. Conversely, if your work is being managed by another person, we can help to ensure the rights to your work product are negotiated and delineated before your work begins.
If your copyright has been violated, you can pursue legal action by showing ownership of a valid copyright, actual copying and misappropriation. Remedies for infringement may include injunctive relief, impoundment, destruction, damages and court costs. As discussed above, your copyright must be registered before you can file a lawsuit. If you have filed a “timely registered” copyright, you can seek statutory damages (ranging from hundreds of dollars to tens of thousands of dollars) and attorneys’ fees. If your work is published, then your registration is considered “timely” if you made it within three months of the first publication and the infringement took place after the first publication. If your work is unpublished, registration is “timely” if it is made before the infringement occurs. If you have a “timely registered” copyright, you may choose between statutory damages or the actual damages you suffered as well as the defendant’s profits.
All copyright infringement claims take place in federal court, since copyright is federal law. You must act swiftly as your legal action may be time-barred if you wait too long before filing suit.
Defending and Avoiding Copyright Infringement Claims
The law recognizes various exceptions for using others’ copyrighted works for legitimate purposes. You may be permitted to use another’s copyrighted works for certain purposes and in certain ways, although the copyright owner may challenge your right to do so. These include use of works in the public domain, de minimus (minimal) copying, fair use, parody and transformative use. It is important to seek counsel if you intend to do so in order to ensure your actions do not cross the permitted boundaries of use. Experienced copyright counsel should be retained promptly upon receiving notice of a pending or anticipated copyright infringement lawsuit.