Legal Remedies For U.S. Copyright Infringement
John Wilson • October 13, 2017
Enforcement Of A U.S. Copyright Judgement
To sustain an action for copyright infringement a copyright owner must prove (i) ownership of a valid copyright in a work; (ii) copying by the defendant; and (iii) that the defendant’s copying constitutes an improper appropriation. A copyright registration certificates are prima facie evidence of ownership. See 17 U.S.C. § 410(c). Unless properly challenged, prima facie evidence means that the court will believe you are the one true owner of the copyright in question. Although there is no formulaic test for improper appropriation, when a person copies a significant portion of someone's copyright (e.g. software, photograph, drawing, etc.) it may constitute copyright infringement. See 17 U.S.C. §§ 106, 501(a). Our Dallas Copyright Attorneys can assist you in filing or defending copyright infringement litigation. For more information on copyrights, see our Copyright Legal Practice
web page.
Remedies For Copyright Misappropriation
In the event a court believes a third party has infringement your copyright, there are four basic types of copyright damages available:
- Injunctions;
- Impoundment;
- Damages; and
- Criminal Penalties.
Injunction For Copyright Infringement.
The Copyright Act provides for both preliminary and permanent injunctions. 17 U.S.C. § 502(a). The suit must be brought in federal district court. 28 U.S.C. § 1338(a). An injunction is a a judicial order that restrains a third party from beginning or continuing an action threatening or invading the legal right of another. An injunction would order a third party to cease and desist the acts which lead to the copyright infringement.
Impoundment For Copyright Infringement.
At any time during a copyright infringement case, a court may order the impounding of all illegal material which has been manufactured by a third party (i.e. copyright infringing products or other items). These materials can include, but are not limited to, illegal instruments of manufacture, molds, source file, digital masters, tapes, negatives and copioes of photos, or any other item used it produce the infringing works. Impoundment under § 503(a), however, is not granted ex parte and does not authorize the seizure of books or records relating to the infringement. See Nimmer on Copyright § 14.07; FED. R. CIV. P. 65(f). Instead ex parte seizure and impoundment is available under FED. R. CIV. P. 65(b), as described below. 17 U.S.C. § 503(a) provides for impoundment:
"At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced."
Damages For Copyright Infringement.
A copyright infringer is liable for either (i) the copyright owner’s actual damages and any nonduplicative profits of the infringer or (ii) statutory damages. 17 U.S.C. § 504(a). It is important to be able to calculate with reasonable certainty the actual damages or profits of profits to be awarded. If you cannot calculate actual damages, then one must rely on statutory damages under 17 U.S.C. § 504(a). Only one statutory damage award is available per work infringed, regardless of the number of times a given work has been infringed. Id. § 504(c)(1). Section 504(c)(1) provides for statutory damages in an amount not less than $750 or more than $30,000 as the court considers just. In the case of willful infringement the court may increase an award of statutory damages to a sum of not more than $150,000 per work infringed. Id. § 504(c)(2). Likewise a court may decrease or remit an award of statutory damages in the case of an innocent infringer. Id. The court may, in its discretion, award costs and attorney’s fees. Id. § 505.
Criminal Penalties For Copyright Infringement.
17 U.S.C. § 506 of the U.S. Copyright Act provides criminal penalties for copyright infringement:
"Any person who infringes a copyright willfully either—
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. "
For instance, if the infringing third party is charging $10 per copy of your copyright, then it is “for purposes of commercial advantage or private financial gain.” This offense is at minimum a misdemeanor punishable by imprisonment for not more than one year and/or a relatively minor fine. See 18 U.S.C. §§ 2319(b)(3), 3571. If, during any 180-day period, that same third party has reproduced or distributed at least 10 copies having a total retail value of more than $2500, then the offense is a felony punishable by imprisonment for not more than 5 years and/or a fine of up to $250,000. See id. §§ 2319(b)(1), 3571. Second or subsequent offenses are punishable by up to ten years’ imprisonment. Id. § 2319(b)(2).
If it were not “for purposes of commercial advantage or private financial gain,” but the infringement satisfied the requirements of section 506(a)(2), the offense is at minimum a misdemeanor punishable by imprisonment for not more than one year and/or a relatively minor fine. Id. §§ 2319(c)(3), 3571. If that infringing third party has reproduced or distributed at least 10 copies having a total retail value of at least $2500, the offense is a felony punishable by imprisonment for not more than 3 years and/or a fine. See id. §§ 2319(c)(1), 3571. Second or subsequent offenses are punishable by up to six years’ imprisonment. Id. § 2319(c)(2).
17 U.S.C. § 506(b) provides for forfeiture, destruction, or other disposition of infringing products and materials.
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