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March 21, 2012

Ask a Copyright Infringement Lawyer: How Do I Protect My Copyright?

Welcome to Copyright Law Radio. We bring you the best in copyright news, legal advice and information. From copyright infringement claims and defenses to threat letter issues, DMCA takedown notice letters, copyright licensing, and legal analysis of the latest copyright law cases, we have a copyright attorney who can answer your copyright questions.

Welcome to Copyright Law Radio. My name is Copyright Attorney Enrico Schaefer. I am a copyright lawyer with the law firm of Traverse Legal. Every once in a while we’ll go ahead and answer some questions that we get online off of the internet about copyright issues, and today the question is: How do I protect my copyright from infringement? A good copyright infringement lawyer knows that it’s one thing to own a copyright (it is one thing to be the author of an original work), it’s a whole different thing to protect that copyright from infringement, especially with the advent of the internet, because everything now is cut and paste. Everything is grabbing content from one place and putting in another. It is so easy to take someone’s photograph or written words or artwork and put them onto my website.

Therefore, you want to be able to be in a position to protect your copyright work or you potentially lose your copyright. So, the first question that we typically encounter from a client about copyright infringement is: what is copyright infringement? As a general matter, if you are the author of an original work, that qualifies for copyright protection under the Copyright Act. Then, you have the right to say who gets to use that work, how that work gets used, how that work is displayed online, and any parameters around the use of the work. And you could say, “Hey, I don’t want anyone else to be able to use my copyright protected work except for me,” or, you can license that copyright work in very specific instances to specific people or specific companies, and you get to control how that copyright work is used. So you can say, “I’m going to allow you to use this copyright protected photograph as long as the work is non-commercial and you attribute me as the author” so you can limit the copyright work. Therefore, as a general matter, copyright infringement happens when your copyright protected work is used in a way that is beyond the permission of the copyright owner. When I say used, I mean that the copyright is being reproduced or displayed or put on a website or used in an advertising flyer or, in the case of performances, is performed without your permission.

So, how do you protect your copyright work? How does copyright law protect your copyright? How does a lawyer – a copyright lawyer – go about stopping infringement once it starts to occur?

Well, these are usually a progression. Oftentimes, your legal budget is an issue. Not everyone can afford to simply ramp up directly to a copyright infringement lawsuit and start suing people out of the gate.

Usually, the client has a goal of simply stopping infringement and obtaining an appropriate royalty or license or fee for the prior use of the copyright without permission. So oftentimes, you want to put the person who’s infringing on notice.

Now, there’s something that you need to understand under copyright law. Unless you have registered your copyright work with the U.S. Copyright Office, copyright law, in most instances, will preclude you from bringing a lawsuit, so you cannot threaten to sue someone for copyright infringement unless you have already gone through the registration process at the copyright office.

But, assuming you have done that, the first thing you are going to do is send a notice letter. In many instances, the person who has used your work doesn’t really understand copyright law or doesn’t realize that you are the owner of the copyright. They may have gotten it from someone else. They may have thought it was in the public domain. There are many different things that happen that cause people to put an image on their website that they do not have permission to use.

So, the first thing you have to do is provide notice to the person who is infringing your copyright. Oftentimes, you will do that as part of that copyright infringement threat letter or sometimes you’re going to be a little lighter about that and you’re going to do copyright infringement notice letter saying, “hey, I’m putting you on notice of my copyright.” You will ask for a number of things to be done. The first thing that you will note is your rights and that the copyright is, in fact, something that you have rights in, as opposed to someone else. If it is registered, that makes it easy. You could provide the registration information from the copyright office.

The next thing you are going to do is show them the use that is infringing. So, if it’s on their website that is displaying on the internet, you’re going to do screen captures of their website using your copyright protected work and show that it is, in fact, the same and that it is, in fact, yours. You are going to note that they do not have permission. You are going to ask them to cease and desist. That is, to remove the web page, remove the image from the web page, remove the text from the web page, these types of things.

The third thing, you want to do is ask them to provide assurances that they are not going to do it again.

The forth thing you want to do is ask, “Are you using any of my other copyright protected works?” So, if you are in the business, for instance, of producing a particular type of photograph, you are going to want to make sure that they are not infringing on anything else, or that they haven’t used your image in some other format that you can’t see. And then you are going to ask for a fee, either to pay for your attorney’s fees or to pay for the prior use of the copyright protected work for the period of copyright infringement.

So, these are the things that your lawyer is going to be thinking about when you approach him and say, “Hey! I have a problem. Someone is infringing my copyright protected work.” These are the things that a lawyer is going to go through in a copyright infringement notice letter or a copyright infringement threat letter to the infringing party in order to try to accomplish the client goals.

Now, let’s say none of that works. The next step, obviously, is to take it to a higher level. For instance, advising third parties that are also displaying your work on behalf of the infringer to remove the copyright protected work from their website. So, you can go to a website host, which is the company that provides the servers upon which the html sits for that website. So, if there is copyright infringement, you can go through a Digital Millennium Copyright Notice and Takedown effort in order to have, for instance, a domain name, a website or a web page removed from the internet. You can also go to Google and have those images removed from Google Search also using Digital Millennium Copyright Act, also known as a DMCA Copyright Act Takedown Notice. You can go obviously straight through to a copyright infringement litigation if, in fact, you are unable to accomplish your goals using these more cost-effective methods.

So, before you talk to your copyright infringement lawyer, these are the things you need to know, even though you probably are going to want to sue. A lawsuit is, in many instances, the last resort rather than the first resort, so go in with reasonable expectations. Two, try to figure out what your goals are. If your goal is to simply have it removed and move on, then that’s an easier thing to accomplish and it’s going to affect the tone of the threat letter that is sent. If your goal is compensation, then obviously that’s a harder thing, it’s going to cost you more money in attorney’s fees to accomplish that goal, in many instances. So, be able to identify your goals and prioritize your goals. That’s what your lawyer is going to want you to do, so that the lawyer can craft a strategy that accomplishes your goals.

My name is Copyright Attorney Enrico Schaefer, that’s all for today. We’ll be answering your questions next time on Copyright Law Radio. Have a great day!

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