My Copyright Has Been Infringed: Do I Need an Attorney?

If your copyright has been infringed, you may need a lawyer.

By , Attorney · Benjamin N. Cardozo School of Law

Imagine that you wrote an original screenplay with the hopes of getting it produced by a major television network. You meet with a network executive and give her a copy of the script, but she rejected your proposal, saying that there were not be interest. The following year, you are shocked to flip through the channels and hear your precise dialogue being spoken by the characters on a show on the same network. Yet they never approached you or paid you.

If you created original content that was then used without your permission, you may have a case of copyright infringement. When do you have such a claim, and should you retain a lawyer?

Determining Whether Your Copyright Has Been Infringed

Essentially, any content creator owns the copyright to that content, whether the creation is a book, a poem, a painting, or a sculpture. The Copyright Act of 1976 gives creators of original works certain exclusive rights over those works, including the exclusive right to reproduce, perform, or distribute the work. Your copyright has probably been infringed if a third party has taken your work without your permission and impinged on any of the exclusive rights outlined by 17 U.S.C 106.

You do not need to register your copyright with the U.S. Copyright Office in order to have a copyright; protection is automatic. However, as a practical matter, you do need to register your copyright before you can bring litigation in federal court.

Note that you may not own the copyright if a company or individual paid you to create that work. In this situation, it would be considered a "work made for hire," and the paying entity would own the copyright to "your" work. For example, if you were hired by an advertising agency, you could not claim copyright in the copy that you produced on behalf of clients; the agency would own it, because you are their employee. Similarly, if you are hired by a company to write a piece of software as an independent contractor, absent an agreement to the contrary, they would argue that they own the copyright to whatever you create.

Beware of Rushing to Litigation

Before you rush to hire a lawyer and file a lawsuit, consider the practical harm done by the infringer. Unless you lost, or will lose, significant revenue because of the infringement, the costs of litigation may not be worthwhile.

First, lawsuits are time-consuming. They generally involve many meetings and telephone calls with your attorney, in addition to appearing at various depositions and court conferences. Second, litigation is often expensive. Attorneys can cost hundreds of dollars an hour, and unless they are working on a contingency basis, you are likely to pay that money regardless of whether you win or lose the case.

In some situations, you may be able to resolve the dispute without hiring an expensive copyright attorney. Hiring an attorney can send a message that you are gearing up for battle rather than being open to collaboration and compromise. Your initial step might depend on your relationship with the infringer. Is it a former colleague or friend, or an unknown third-party company? If a colleague or friend, you might begin by meeting to discuss the situation over coffee, approaching the person in a calm (but firm) manner and explaining your role in writing, painting, or otherwise creating the work at issue.

If the suspected infringer is an unknown third-party company, you might need to take a more formal approach in the first instance. For example, you might send a demand letter to the company's CEO, outlining your ownership over the copyright and requesting an in-person meeting.

That third party may be willing to have a conversation with you directly in an effort to avoid litigation. In the example of the television show above, the network would most likely want to settle with you quickly, to avoid potential embarrassment over its intellectual property theft. The network would also likely want to avoid a situation where litigation delays or halts the show from being broadcast. Most companies would prefer to mitigate that legal risk, and might be willing to offer you some sort of settlement (assuming they believe that your claims have some verifiable merit).

In some situations, you might also consider suggesting mediation. A mediator is a third-party neutral who works with disputing parties to enhance mutual understanding and negotiate compromise. Sometimes, mediation can be a more effective strategy than your negotiating directly with the alleged copyright infringer.

Finding a Copyright Lawyer

If you are not able to negotiate a solution with the infringer, you may need to hire an attorney. What sort of attorney should you find? Copyright litigation is a specialized area of law, falling under the broad header of "intellectual property law." Often, lawyers practice copyright law exclusively.

Keep this in kind as you search for a lawyer. You will likely want someone with experience in copyright litigation or infringement. As you meet with potential lawyers, ask whether they have represented clients in your position before (namely artists, writers or photographers whose works were infringed by a third party). Ask for references as well. This will give you a good sense of their relevant experience.

If you would like to speak with a copyright lawyer, see Nolo's Lawyer Directory. You'll find profiles of local lawyers complete with pricing, practice philosophy, experience, and more.

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