Did You Receive a Copyright Infringement Demand Letter?
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If you’ve received a demand for payment due to copyright infringement, don’t panic, but do speak with a copyright infringement defense attorney right away.
Like the term “Ambulance Chaser” in regard to lawyers that make it their business to pursue injury claims of dubious merit, “Copyright Troll” is a derogatory term for a lawyer or law firm that earns fees by firing off demand letters, often with little prior research or substantive evidence, to people targeted as copyright infringement defendants in the hopes of fast settlement payments.
Copyright trolling has become a cottage law industry. Demand letters are relatively simple, and less costly in comparison to most other aspects of the legal process. The demand letters sent by lawyers commonly classified as “Copyright Trolls” contain copyright infringement allegations coupled with bone-chilling threats of law suits and extraordinary demands in terms of the damage amounts.
Commonly, these extraordinary damage threats are based upon copyright law’s “Statutory Damages” awards. In many cases, statutory damages may not be available to certain plaintiff’s. In fact, some of these letters are sent from individuals that have at best dubious standing to sue.
Such demand letters often stem from two scenarios:
Scenario 1: Downloaded Content (Direct or Via a Client Such as Bit Torrent)
Scenario 2: Use of a Photo Without Permission
If you have been sued for copyright infringement, or you have received a demand letter threatening suit, you should follow these two rules:
- Do Not Ignore the Letter. You may read online about individuals that received similar letters and simply ignored them. Generally, ignoring a demand letter or a cease and desist letter isn’t a very good idea. In the case of legitimate claims, ignoring a copyright demand letter may cause the copyright holder to spend additional resources in pursuit of his or her claim. These additional costs may drive up the damages that the copyright holder is seeking in his or her claim.
- Speak with an intellectual property Lawyer at Posada, Taddeo, and Dietiker prior to speaking with an opposing party. If you ignore this warning you must expect that everything that you say to the opposing party will be used against you in their copyright infringement claim.
Not Every Demand Letter is From a “Copyright Troll”
Now that you are aware that this odd cottage industry exists, it is also important to understand that not every individual or lawyer behind a claim for copyright infringement should immediately be devolved into a “Copyright Troll.” Certainly, copyright holders are entitled to protect their works, and there are many copyright holders, and lawyers, that do not engage in “luring” victims in order to file claims, and protect rights in a fair, equitable and reasonable manner.
I Received a Demand Letter for Copyright Infringement. Now What?
Our copyright infringement defense attorneys can help you.
What is a Copyright?
A copyright to a work is an “intellectual property.” Unlike real estate or your personal property, intellectual property is intangible (can not be physically touched).
This is easily explained by comparing a “copy” of a work to the copyright of a work. When you buy a book on Amazon, you own a copy of the book. Whether you buy the very first, handwritten copy – even if you buy the only copy – you merely own what is legally known as a copy of the book. On the other hand, the copyright is the ownership of a “basket” of other rights (explained below) which remain with the creator of the work, the most obvious being the right to reproduce.
Under 17 U.S. Code § 102, copyright protects original works of authorship fixed in any tangible medium of expression, now known or later developed, from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
What are Original Works of Authorship?
Original works of authorship are defined as something created by a human, with at least a minimal degree of creativity, known as at least “di minimus” creativity. Di minimus creativity is nearly always satisfied, and the Office of Copyright will generally not judge the creative merit of the work.
Works of authorship include, but are not limited to:
- Literary works
- Musical works, whether the music is recorded or written in sheet music style, including any accompanying words
- Dramatic works, including any accompanying music, pantomimes and choreography
- Paintings or any type of graphic
- Any film, movie, motion picture, or other audiovisual work
- Sound recordings
- Certain architectural works
What does Fixed in a Tangible Medium Mean?
Fixed in a tangible medium means the work was recorded in some manner. This is most easily described by a physical recording such as: the work being committed to paper for literary works, digitally preserving or recording on tape for film, recording a song, or writing out sheet music. Paintings and sculptures are a fixed tangible meaning within themselves. Although not an entirely complete description due to the ever expanding world of digital and cloud based “recording” systems, you can generally think of “fixed in a tangible medium” as preservation that can physically be touched.
In simple terms, this means copyright protection is available on any original work saved in some way other than memory.
What Works can be Protected by a Copyright?
Copyright protection extends to obvious items such as recorded music, written sheet music, books (including comic books, graphic novels and E-Books), videos, films (including short films), paintings, drawings, graphic designs, sculptures and architectural drawings.
However, copyright protection can also extend to manuals, menus, brochures, logos, product labels, magazine articles, blog articles, websites and more.
Our Copyright lawyers in Broward County, Miami Dade County, and Palm Beach County can assist you with copyright registration, counseling, claims against your copyright, and copyright infringement lawsuits.
What is Copyright Infringement?
Copyright infringement is the use of the works of others. Those works qualify for copyright protection and are being used without permission, with the use infringing certain exclusive rights granted to the copyright holder.
Under 17 U.S. Code § 106, copyright holders generally have six (6) exclusive rights in their work. These include:
- The right to reproduce the work
- The right to make derivatives of the work
- The right to distribute the work
- The right to display the work
- The right to perform the protected work
- In the case of digital recordings, the right to broadcast the work
When a copyright holder believes that one of his exclusive rights has been used without permission, the holder of a copyright may bring a claim for “copyright infringement.”
What Are the Legal Penalties for Copyright Infringement?
Firstly, there are numerous defenses and strategies to utilize if you are sued for copyright infringement including but not limited to fair use, challenging the validity of the copyright, express permission, implied permission, controlling damage amounts, as well as other strategies depending upon the facts and circumstances of each case.
Letters that Warn, “You Could Be Responsible for Damages of Up To $150,000 Per Incident”
Being served with copyright infringement claim or a demand letter can create significant panic because copyright law contains something called, “statutory damages.” This means that in lieu of proving damages, the law provides for a “minimum penalty” when certain formalities in copyright registration have been meet.
The legal penalties for copyright infringement are:
- Statutory damages, which range from $200 to $150,000 for each work infringed; or
- Actual damages, the actual dollar amount of the injury (e.g. profits earned + other losses suffered)
In addition to the above, the court may also order:
- Infringing party to pay the attorneys fees and court costs of the claim.
- An injunction to stop the infringing acts. Simply put, an injunction is a court order which if you fail to comply with, will place you in contempt of the court.
Did You Receive a Demand Letter For an Outrageous Amount of Money Claiming Copyright Infringement? We Can Help.
Our Broward County, Miami Dade County, and Palm Beach County copyright infringement defense lawyers handle all types of copyright claims and defenses.
We aggressively and zealously defend claims of copyright infringement. We counsel and protect your rights in a copyright infringement lawsuit in Broward County, Palm Beach County, Miami Dade County, throughout Florida, and in select other states.
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