A copyright grants the creator of an original work exclusive control over its use and distribution. This legal protection can be applied to various forms of creative expression, such as literary works, music, art, and software. Copyright law ensures that creators have the sole authority to reproduce, distribute, perform, and display their work, and it helps protect against unauthorized use or reproduction by others.

The use of a copyrighted work without the owner’s permission is known as copyright infringement. If this happens, the copyright holder has the right to seek legal protection. Here is a short guide on how to sue for copyright infringement and how the Orlando intellectual property lawyers at BrewerLong can help.

Elements of a Copyright Infringement Claim

To establish infringement, a plaintiff has the burden of proving by a preponderance of the evidence that they are the owner of a valid copyright and that the defendant copied the original expression from the copyrighted work. 

Ownership of a Valid Copyright

The first element a plaintiff must prove is that they own the copyright to the infringed work in question. Copyrighted works must be fixed in a tangible medium of expression, meaning they exist in a form that can be perceived or reproduced, such as books, musical compositions, musical recordings, visual works like paintings or photographs, films, videos, computer code, and more. The work must also be original in that it was independently created and possesses at least some minimal degree of creativity. To help prove their claim, a creator should maintain records, drafts, or other evidence of the creation process that can help establish ownership in case of a dispute. In addition, they can register the work with the U.S. Copyright Office.

Do I Need to Register My Work to Sue for Copyright Infringement?

Registering a work with the U.S. Copyright Office is not necessarily required, but it creates rebuttable presumptions as to both validity and ownership and makes enforcing copyright infringement claims much easier than it would be without one.

Another Party Infringed the Plaintiff’s Copyright

Next, the copyright holder must prove that another party infringed the copyright. They must demonstrate that the alleged infringer had access to the copyrighted work, which could be proven through evidence of the work’s availability, public exposure, or other means, and that they illegally copied it. 

While showing that another party copied a certain work may be easy to prove with a photo or video, when it comes to showing unauthorized copying of a copyrighted work, or unauthorized creation of a derivative work, establishing infringement can be challenging. To establish copying, the plaintiff can show that the defendant’s work is substantially similar to the protected elements of the original work. If the plaintiff has registered their work with the U.S. Copyright Office, proving infringement is usually easier.

Criminal Copyright Infringement Litigation

In some rare cases, copyright infringement can become a criminal charge if the defendant willfully copied or otherwise used the copyrighted work for commercial advantage or private financial gain.

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Possible Defenses Against Copyright Infringement Claims

Defendants facing copyright infringement claims may assert various defenses to counter the allegations. The most commonly cited defense is fair use, which allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. If the use adds “new expression, meaning, or message” to the original work, it is likely transformative and might fall under the fair use doctrine. In addition, defendants can deny copyright infringement if the allegedly infringed material is in the public domain, as copyright protection does not extend to public domain work. For more information about copyright infringement defenses, consult with an intellectual property attorney.

Protecting a Copyright Infringement Complaint

If you find out that someone else appears to have copied, performed, or distributed your work without permission, you have the right to protect your work. The first tip for protecting your rights is to register the work with the U.S. Copyright Office. If you do not register your work, you cannot bring a copyright lawsuit under federal law. However, you can pursue a claim in state court to stop the infringer from using your copyrighted work and to seek actual damages. Without registration, the burden is on the plaintiff to prove that they were the original artist and hadn’t released it into the public domain. 

Possible Damages

In addition to injunctions prohibiting further copyright infringement, It may be possible for an individual to obtain actual damages and profits in a lawsuit that involves unregistered copyright, as long as the plaintiff proves the elements detailed above. Actual damages and profits are the actual funds that were lost, or potentially lost, by the owner of the copyright and the funds that were gained by the individual who used the work.

If a copyright is registered and the elements proved, a copyright holder can seek statutory damages under federal law, in addition to attorney fees. If you have any questions, seek the advice of an intellectual property attorney.

Trust the Intellectual Property Lawyers at BrewerLong

If you have any issues, questions, or concerns related to a copyright issue or registering a copyright, the attorneys at BrewerLong are here to help. Our intellectual property lawyers have over a decade of experience filing for and protecting intellectual property holders’ rights. Call our office or fill out our online contact form to schedule a consultation to discuss your situation.

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