Timely Registration Of Copyrights Is Advantageous
Copyright law protects authors of creative content from unauthorized exploitation. For several years we litigated an art fraud case on contingency for multiple artists against a fraudulent publisher and other distributors of unauthorized copies of their works. Some of these matters are still ongoing.
The U.S. copyright law has some “teeth,” in that if works are timely registered and an infringement suit brought, recovering statutory damages of up to $150,000 per work infringed and attorneys’ fees is possible. The key is timely registration, which is easily accomplished with a nominal filing fee. Unfortunately most artists and authors fail to register. For infringement actions in these cases, actual damages must be proven and attorneys’ fees cannot be recovered. We regularly register copyrights in various media for our clients, and assist with enforcement tasks going forward.
Registering Copyrights In Marketing Content
Copyright law can also be used to augment protection accorded by Patent and Trademark law. Although useful articles may not be copyrighted, creative expressions and designs developed for marketing or advertising may qualify for copyright protection. For example, if a logo or design elements accompanying a word mark are distinctive enough, they can usually be registered at the Copyright Office. Well written advertising text, selling a product with a story, should also be registered. In instances where infringers use text and graphics protected by copyright without authorization, proceeding under copyright law, with its attendant statutory damages, can be a cost-effective deterrent in protecting intellectual property rights.
Don’t Overlook Software License Compliance
The Business Software Alliance (BSA) a trade group representing software companies that conducts audits of businesses suspected of using pirated software. Frequently, as small companies begin to grow, they inadvertently or intentionally install multiple instances of software on several computers, or use software copied from other users. And small businesses rarely have a dedicated IT department, or conduct software audits or keep records establishing proof of properly licensed software. At a certain point, these companies may become a target of the BSA.
The BSA typically learns of unlicensed software from a former employee of an auditee. Initially, a company receives an audit letter identifying them as a potential user of unlicensed or pirated software, and demanding a list of the company’s computers, software and proofs of purchase to establish proper licensing. Since companies ignoring the letter will eventually receive a formal copyright infringement complaint, answering the audit letter is particularly important. By retaining counsel, certain audit data and settlement negotiations can remain privileged and non-discoverable.
Following an audit, the BSA usually makes a settlement demand incorporating the purchase price of any unlicensed software along with a penalty multiplier, and their costs of investigation. Costs for settling can easily run in excess of $100,000. In a recent settlement, IPRO Tech Inc., a company in Arizona (not a client of ours), paid $246,470 to settle unlicensed software claims. Even with the high cost, settling may be preferable to the risk of copyright infringement litigation and the possibility of paying statutory damages per work infringed.
Understanding Fair Use
Digital media is ubiquitous and allows computer users to easily make an unlimited number of perfect digital copies. With the prevalence of online social networking and virtual environments increasing, users can easily stumble into infringing territory. While certain types of reproduction are clearly non-infringing, such as criticism, research and news reporting, it can be difficult to anticipate the boundaries of fair use. The Copyright Act establishes four factors to be considered when determining whether or not fair use applies: the purpose and character of the use, such as commercial vs. non-profit, the nature of the copyrighted work, the amount reproduced in relation to the copyrighted work as a whole, and the effect on the potential market for the copyrighted work.
Although holders of popular copyrights permit a certain amount of reproduction such as fan websites bearing copyrighted works, or homemade reproductions, they will object to copying that affects them adversely. Typically, copyright holders are most concerned with infringement having an economic impact such as copying music or visual media. Another area of concern however is attribution. Inferior copies of copyrighted works can lead to a public perception of low quality, and a complaint from a copyright holder.
“A creative economy is the fuel of magnificence.”
— Ralph Waldo Emerson (1802-1882)