Copyright Infringement lawyers must decide whom to sue, where to file suit and what damages to seek when they file copyright infringement litigation on behalf of a client.

Where May Copyright Infringement Lawsuits be Filed?

All copyright infringement lawsuits must be filed in federal court, as federal courts have exclusive jurisdiction over copyright claims. In terms of which federal court the copyright lawsuit must be filed, venue for such litigation may be where the defendant is found or where infringing acts occur.

What Types of Copyright Infringement Claims May be Alleged?

A copyright infringement attorney filing a copyright lawsuit must allege ownership of a copyright and infringement of that copyright. Registration of a copyright is a requirement for filing suit for copyright infringement. However, there is no requirement that registration of the copyright predate the infringement that is the subject matter of the litigation. Infringement can precede registration, but registration is a pre-condition for the lawsuit. As a general matter, a copyright owner can file suit based on a copyright registration application, even if the application has not yet been approved.

Federal law provides damages and relief for the unauthorized exercise of one of the exclusive rights that copyright owners have under 17 U.S.C. § 106, including: (1) the right to reproduce the work in copies, (2) the right to prepare derivative works based upon the copyrighted work, and (3) the right to distribute copies to the public by sale or other transfer of ownership, or by renting, leasing or lending.

Further, the infringing activity that is the subject of the copyright litigation must have taken place within the United States, rather than in foreign territories. There are, however, some exceptions to the forgoing general rule, with such limited exceptions allowing for relief for extra-territorial copyright infringement activities in limited circumstances.

The copyright infringement lawsuit may also contain other federal and state claims, including patent infringement, design patent infringement, trade secret theft, trademark infringement, trade dress infringement, unfair competition and other claims.

The statute of limitations for copyright infringement lawsuits is three (3) years after the right to bring such a lawsuit accrues.

Who May File the Copyright Infringement Claim?

Copyright infringement attorneys may bring infringement claims on behalf of two specific classes of people. Specifically, a party who owns the copyright or someone who is an exclusive licensee of one of the rights belonging to the copyright owner may initiate the copyright litigation.

The following people own the copyright: (1) the person who created the work, (2) the employer of the person who created the work, if the work was created within the scope of employment, (3) for some limited types of copyrights, the party for whom the work was created if there was an agreement in place that specified that is was a "work made for hire," and (4) an assignee of a copyright where the copyright was transferred by written assignment agreement, signed by the copyright holder.

Who May be Sued on a Copyright Infringement Claim?

Copyright infringement lawyers may bring infringement claims against any party who exercises an exclusive right of copyright owners without authorization may be liable for copyright infringement. Further, a party may be liable for contributory infringement if such a party had knowledge of the infringing activity and such a party induces, causes or materially contributes to the infringing activity of someone else.

A party may also be liable for "vicarious copyright infringement" if the party has the right and ability to control the infringer's actions and receives a direct financial benefit from the infringement.

How to Prove Copyright Infringement?

The party bringing the copyright infringement claim has the burden of proving infringement. Copyright infringement attorneys may meet this burden by either introducing evidence of direct copying or relying upon various inferences of copying that the law provides in this area. For example, if a party had access to the copyrighted work and if that party produces a work that is substantially similar to copyrighted works, an inference of unauthorized copying may be drawn.

Significantly, copyright infringement is a strict liability cause of action. In other words, there is no requirement that the copyright infringement lawyer prove any particular intent or state of mind by the alleged copier.

In proving illegal "copying," the law requires that proof of "substantial similarity" or, in some instances, "virtual identicality" be established. In other words, under the substantial similarity test, the issue is whether the copyrighted work and the accused work are substantially similar. One formulation of this test is that the jury is asked whether an average lay person would recognize the defendant's work as having been appropriated from the copyrighted work.

In the virtual identicality test, the issue is whether there has been an appropriation of expression or copying of substantially the entire item in comparing the copyrighted work with the accused work. The virtual identicality test applies to compilations or works consisting of a large amount of uncopyrightable aspects.

Copyright infringement attorneys often rely upon expert witness testimony in either establishing, or rebutting, substantial similarity between the works that are at issue in copyright litigation.

Damages and other Remedies Authorized for Copyright Infringement

Copyright infringement lawyers may obtain injunctive relief for their clients, as either a preliminary or permanent injunction, when a copyright is infringed. Irreparable harm, one of the requirements for an injunction, is generally presumed when a copyright is infringed.

The law also allows, in certain instances, the impoundment and destruction of infringing works. One factor that a copyright owner should consider is whether to seek this relief at the beginning of litigation, or to request this remedy at the conclusion of litigation once the copyright owner has prevailed.

Copyright infringement lawyers may also obtain monetary damages for their clients. Generally, the monetary damages that are recoverable by the copyright owner are the lost profits that the copyright owner has suffered, which in certain circumstances may be a formulation of lost reasonable royalties. One advantage the law provides a copyright owner seeking to recover actual damages is some burden-shifting evidentiary doctrines. First, the copyright infringement lawyer need only show the lost revenue of the copyright owner or licensee. Once the copyright owner introduces evidence of lost revenue, the burden then shifts to the infringer to show that this loss of revenue would have occurred even if there had been no copyright infringement.

A copyright infringement attorney may also obtain the profits of the infringer that can be attributable to the unauthorized use of the copyright. It is the copyright owner's burden to show the gross revenue for the defendant's infringing product and the sales related to infringement. Once the copyright owner does it, the burden shifts to the infringer to prove the cost that should be deducted from this gross revenue. The jury is then asked to determine the infringer's illegal profits that were made from the copying.

Statutory Damages May be Recovered

When a party registered the copyright either before the infringement started, or within three months of the first publication of the work, the plaintiff is eligible for statutory damages and attorney's fees. The statutory damages fall within a range, with the exact sum of money in this range being left to the discretion of the judge or jury. The statutory damages allowed by federal law for copyright infringement are $750 to $30,000 per infringement. If the infringement is found to be willful, then the discretionary range increases to up to $150,000 per infringed copyright. If the defendant is an "innocent" infringer, that is, not aware of the infringement and had no reason to believe that the acts constituted infringement, then the statutory damages may be reduced to $200.

As you can see from the damage ranges cited above, when multiple copyrights are willfully infringed, the damages escalate to enormous levels.

Attorney's fees are also available to a winning plaintiff. Further, if the copyright is registered, custom seizures of the infringing works are also possible remedies provided by the law.

If you or your company have had your copyrights or other intellectual property infringed, consider contacting the Austin-based attorneys at Taylor Dunham LLP. The Martindale-Hubble Law Directory, which is the most respected rating organization that evaluates attorneys and law firms on the basis of legal ability and ethics, has rated our firm "AV," which is the highest rating given for legal ability and ethics. You will find lawyers at Taylor s LLP, who are board certified in civil trial law, have been honored by publications as "Super Lawyers" and "Rising Stars" and have very active litigation dockets in the area of intellectual property litigation. We regularly give clients the benefits of creative and flexible fee arrangements, including competitive rates, blended hourly rates and contingency fees (i.e., a "hybrid fee" structure) and full contingency fees. We know that when our clients win, we win.

Contact us for your initial consultation regarding your copyright infringement case.

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